And now for something completely different . . . .
Last week the U.S. Supreme Court declined to hear an appeal from former Illinois Governor Rod Blagojevich. Blagojevich (also known as “Blago”) was convicted on multiple counts of corruption in 2011 and was sentenced to fourteen years in prison.
While Blagojevich’s petition for certiorari was pending, the Supreme Court agreed to hear the corruption case of another former governor, Bob McDonnell of Virginia. McDonnell’s case is set to be argued on April 27 and should be decided by the end of this term.
When the Court agreed to take McDonnell’s case, some thought it might be a good omen for other public corruption defendants. Was the Court about to undertake a wholesale re-examination of corruption law in a way that would benefit Blagojevich, New Jersey Senator Bob Menendez, and other officials with pending cases? But the refusal to hear Blago’s appeal puts at least a temporary damper on any such hopes.
And how does Monty Python figure into all this? Read on.
Governor Blagojevich’s Case: Pay to Play
Blagojevich’s convictions resulted from a series of incidents in which he demanded cash or other things of value in exchange for various exercises of his power as governor. The most infamous example arose after Barack Obama was elected President. Obama had been a U.S. Senator from Illinois, and his election left a vacant Senate seat that Illinois law gave the governor the power to fill.
The FBI was already tapping Blago’s phones as part of an ongoing corruption probe, and it quickly became clear that the governor viewed his power to appoint Obama’s successor as a potential bonanza. In one memorable conversation, he was recorded telling his associate: “I’ve got this thing [the power to appoint a new Senator] and it’s f**king golden. I’m just not giving it up for f**cking nothing!”
Blagojevich believed that Obama’s preferred choice to take his seat was Valerie Jarrett. Accordingly, he tried to make a deal where he would appoint Jarrett in exchange for a spot in Obama’s cabinet or for a high-paying position in the private sector arranged by the President. When the Obama administration refused to make a deal, Blagojevich’s response was, “They’re not willing to give me anything except appreciation. F**k them.”
The governor then tried to make a deal with supporters of Rep. Jesse Jackson Jr. to appoint Jackson to the Senate seat in exchange for a $1.5 million “campaign contribution,” but he was arrested before this proposal had a chance to play itself out.
The evidence at trial also included other examples of a “pay to play” culture in the governor’s office. For example, when hospital lobbyists sought an increase in reimbursement rates for Medicaid patients, Blagojevich let it be known he would approve the increase only in exchange for a “campaign contribution” of $50,000. In another incident, when the state legislature approved a program that taxed casinos for the benefit of racetracks, Blagojevich had intermediaries inform a racetrack owner that the governor would not sign the bill until the owner fulfilled a $100,000 “campaign pledge.”
Although the defense characterized the money involved in these incidents as campaign contributions, the government maintained this was a sham and that the money was really for Blagojevich’s personal benefit. The governor was serving his second term and had already decided not to run for re-election, and so had no apparent reason to raise campaign funds.
In July 2015 the U.S. Court of Appeals for the Seventh Circuit, in a decision I discussed here, reversed five of Blagojevich’s convictions. The Court held that those counts rested in part on an improper legal theory: that the trading of political favors (such as trading one appointment for another), without more, could constitute extortion or bribery. However, that left thirteen counts of conviction intact, and those convictions formed the basis of Blagojevich’s petition to the Supreme Court.
Campaign Contributions and Corruption
The key statutes Blagojevich was convicted of violating are Hobbs Act extortion under color of official right and honest services mail and wire fraud. These are two popular statutory vehicles for the federal prosecution of state and local corruption. Both essentially operate as bribery by another name: they prohibit public officials from agreeing to exercise the power of their office in exchange for something of value.
More straightforward cases of bribery involve secret gifts to a politician that have nothing to do with campaign fundraising. In Bob McDonnell’s case, for example, such gifts included a Rolex watch, designer gowns for his wife, and paying for the caterer at his daughter’s wedding. Because the politician has no apparent legitimate reason to be accepting such gifts, a corrupt agreement may more readily be inferred when the politician then acts in favor of the donor.
Where campaign contributions are concerned, however, the analysis becomes trickier. Politicians do have a right to solicit campaign funds, and donors have a right to support politicians whose policies they favor. A campaign contribution may still be extortion or a bribe, but the evidence of a corrupt link will need to be very strong. It is not enough that a politician solicits a campaign contribution and later takes an action that the donor desired – that happens every day. To prove corruption, the government must establish that a particular contribution was given or demanded in exchange for an agreement to take a specific action in return – a clear deal, or quid pro quo.
Of course, it isn’t enough for a politician simply to claim that money he received was a legitimate campaign contribution. If that is the claim, then evidence concerning the nature of the donation and how it was handled becomes important. For example, one way to distinguish legitimate campaign contributions from corrupt gifts is to see whether the “donation” is within relevant legal limits and whether it shows up on required public campaign finance reports. If not, the circumstantial evidence is much stronger that the purported “campaign contribution” was actually a bribe.
The two leading Supreme Court cases involving bribery and campaign contributions are McCormick v. United States (1991) and Evans v. United States (1992). Both involved charges of Hobbs Act extortion under color of official right. And in both cases, the defendants claimed the money they received was actually a campaign contribution (even though, in both cases, they had failed to include the money on their campaign finance reports).
In McCormick the Court made it clear that, when it comes to campaign contributions, it’s not enough for the government to show simply that a donation was made with the expectation that the official would take an action that he in fact later did take. As long as we have privately financed campaigns, that is simply the nature of our politics. The Court held that Congress could not have intended to criminalize conduct that is essentially unavoidable in our political system. For a campaign contribution to be corrupt, therefore, it must be accepted “in return for an explicit promise or undertaking by the official to perform or not to perform an official act.”
But the following year in Evans, the Court seemed to soften this “explicit promise” standard. It held that extortion under color of official right requires only that the public official accept the thing of value knowing that it was given in exchange for a particular official act. There is no requirement that the official verbally demand the payment or “shake down” the payer.
In an important concurrence, Justice Kennedy noted this was essentially the quid pro quo requirement inherent in any bribery prosecution. There cannot just be a coincidence of timing between support and official action; the parties must make a specific deal. But, he noted, the parties “need not state the quid pro quo in express terms, for otherwise the law’s effect could be frustrated by knowing winks and nods.” It is enough if the quid pro quo can be implied from words or actions and the totality of the evidence surrounding the transaction.
The standard that emerges from McCormick and Evans, therefore, is that Hobbs Act extortion under color of official right in a campaign contribution case requires an explicit quid pro quo — but “explicit” does not always mean “express.” The key is whether there is a corrupt link between payment and official action, and that link may be proven by circumstantial evidence in the absence of an express verbal or written agreement.
Blago’s Supreme Court Petition and Implications for McDonnell
Blago’s principal argument to the Supreme Court was that it needs to clarify the McCormick/Evans standard and what it takes to prove a quid pro quo in a campaign contribution case. He claimed his conviction wrongfully failed to distinguish criminal conduct from a legitimate request for political support. He urged the Court to use his case to hold that, where campaign contributions are concerned, a higher degree of proof of an explicit corrupt agreement should be required. The Court apparently was not persuaded.
Blagojevich had made this same argument in the Seventh Circuit, which also rejected it. Judge Easterbrook’s opinion noted that Blago “assumes that extortion can violate the Hobbs Act only if a quid pro quo is demanded explicitly, but the statute does not have a magic-words requirement. Few politicians will say, on or off the record, ‘I will exchange official act X for payment Y.’”
And, in a reference that may have made Easterbrook my new favorite judge, he observed: “‘Nudge nudge, wink, wink, you know what I mean’ can amount to extortion under the Hobbs act, just as it can furnish the gist of a Monty Python sketch.”
(This Monty Python reference apparently impressed the Solicitor General’s office as well; they quoted it in their brief opposing Blagojevich’s petition for certiorari. I’m guessing this may be the first time Monty Python has made its way into Supreme Court advocacy – although I’d love to be proven wrong about that.)
In other words, as Justice Kennedy observed in Evans, the law cannot be defeated by knowing winks and nods. The jury in Blagojevich’s case was free to find the existence of the quid pro quo based on the overall facts and circumstances — including the fact that Blago’s characterization of the money as campaign contributions seemed implausible.
Does the Court’s refusal to hear Blagojevich’s case have any implications for McDonnell’s appeal? In one sense their arguments are similar: McDonnell, too, is claiming the government has wrongfully criminalized routine interactions between a politician and his supporters, and has urged the Court to clarify the line between corruption and “politics as usual.” If the Court were concerned about where that line is being drawn and thought it needed to re-examine public corruption law, one might have expected them to take Blago’s case as well.
But it’s probably a mistake to read too much into this decision where McDonnell is concerned. The facts of the two cases are very different, and the Seventh Circuit accurately characterized the evidence against Blagojevich as overwhelming. His blatant actions did not present a very sympathetic vehicle for probing the outer limits of federal corruption law.
Legally, McDonnell’s claim is different as well. He is not directly challenging the existence of a quid pro quo; rather, he is claiming that even if there was a deal, the quo promised by McDonnell is legally insufficient because it was not an “official act” within the meaning of federal corruption law. This was not an issue presented in the Blagojevich case; he clearly undertook official actions, the question was simply whether he acted pursuant to a corrupt deal.
It’s also possible this is just a question of timing. One of the government’s arguments opposing Blago’s petition was that the Supreme Court should not consider any of his claims until the government decides whether to retry him on the dismissed counts and he is resentenced. The prosecutors have already announced they will not retry him, and he is scheduled for resentencing on June 30. Once that happens, Blago’s lawyers have said they will petition the Supreme Court again to review his legal claims.
So it appears Blago will get one more bite at the Supreme Court apple. As for McDonnell’s fate, we should have the answer sometime in June. Rest assured, Sidebars will keep you posted. Say no more.
Update May 23, 2016: Today the Supreme Court rejected Blago’s petition to consider his appeal following his resentencing, so the Court will definitely not be hearing the case. His resentencing is now set for Aug. 6.
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