Sheldon Silver, Bob McDonnell, and the Sorry State of Public Corruption Law

The Supreme Court’s Bob McDonnell decision claimed its highest-profile casualty last week. On July 13 the United States Court of Appeals for the Second Circuit threw out the corruption convictions of Sheldon Silver, the former Speaker of the New York State General Assembly. The court ruled that, in light of McDonnell, Silver’s jury was not properly instructed on what constitutes an “official act” in a corruption case.

Silver is not out of the woods yet; he may well be convicted again after a new trial. But his case does highlight how much easier it is in the post-McDonnell era for public officials to sell government access to the highest bidder.

Regular readers know I’ve written extensively, and critically, about McDonnell. By adopting an artificially narrow definition of “official act,” the Court in McDonnell cleared the way for public officials to enrich themselves through secret gifts and payments. The Silver case highlights the safe harbors McDonnell creates for corrupt behavior and the sorry state of public corruption law.

Sheldon Silver

Facts of the Silver Case

Sheldon Silver was first elected to the New York State Assembly in 1976, representing much of lower Manhattan. He was elected Speaker in 1994 and held that position until he resigned in 2015. As Speaker, he was one of the most powerful politicians in the state.

In 2015 the United States Attorney’s Office for the Southern District of New York (then headed by the recently-fired Preet Bharara) indicted Silver. The charges were based on two different corruption schemes.

In the first, the government charged that Silver agreed to do political favors for Dr. Robert Taub, a physician and researcher at Columbia-Presbyterian Hospital who specialized in mesothelioma. Silver obtained state grants worth $500,000 to support Dr. Taub’s research, introduced a state resolution commending Dr. Taub, worked to help secure jobs for his children, and did other favors for him.

In return, and to curry favor with Silver, Dr. Taub regularly referred mesothelioma patients who needed legal representation to a law firm with which Silver was affiliated. Silver received a percentage of any legal fees that resulted. Over a ten-year period, Silver earned about $3 million from Dr. Taub’s referrals.

The second scheme involved two major New York real estate developers. Over a number of years Silver took actions in the state legislature to benefit the developers on issues related to real estate taxes and rent legislation. In return, the developers sent tax-related work to another law firm that also had an arrangement with Silver. These referrals resulted in nearly another $1 million in fees for Silver.

In short, the government charged that Silver enriched himself to the tune of about $4 million through these referral schemes, which were not disclosed to the public. In return, he used the considerable powers of his office to benefit those providing the referrals.

The charges against Silver included honest services fraud and Hobbs Act extortion under color of official right. These were also two of the primary statutes used in the McDonnell indictment. Both charges, which are essentially bribery by another name, are commonly used in public corruption cases.

Bob and Maureen McDonnell

Bob and Maureen McDonnell

The Bob McDonnell Decision

Former Virginia Governor Robert McDonnell and his wife Maureen were convicted on multiple counts of corruption in 2014. Prosecutors charged that the two accepted more than $175,000 in secret gifts and loans from businessman Jonnie Williams. In return, Williams sought to have the McDonnells promote his company’s dietary supplement, Anatabloc, within the Virginia government.

In exchange for the gifts, McDonnell introduced Williams to Virginia health researchers and arranged meetings for him with other government employees. He also held a product launch event for Anatabloc at the Virginia Governor’s mansion, attended by other state employees and health officials.

The U.S. Court of Appeals for the Fourth Circuit unanimously upheld the McDonnell convictions. But in June 2016 the U.S. Supreme Court unanimously reversed.

Bribery requires a quid pro quo, an exercise of government power in exchange for something of value. There was no doubt Williams had showered the McDonnells with secret gifts that satisfied the quid side of the equation. But the Supreme Court ruled that in a federal corruption case the quo agreed to by a public official must fit a specific definition of an “official act.” McDonnell’s actions, the Court concluded, did not rise to that level.

The McDonnell Court held that an official act must be a “decision or action on any question, matter, cause, suit, proceeding or controversy” that is or may be pending before the public official. It must be specific and focused, and involve a “formal exercise of government power” similar to a lawsuit before a court or a hearing before an agency. The public official must take an action “on” that matter, such as taking steps to resolve it somehow or pressuring another to do so.

Merely arranging a meeting or holding an event, the Court held, does not constitute an official act. These are simply routine political courtesies and interactions with constituents, not decisions or actions on a particular matter or controversy. If they could form the basis of a corruption case, the Court said, politicians would be unable to perform routine services for any supporter without fearing a potential criminal prosecution.

Timing Is Everything

The McDonnell case was on appeal when Silver went to trial, but the Supreme Court had not yet decided it. Silver’s attorneys requested a narrow definition of “official act” similar to the one argued for by McDonnell. Consistent with Second Circuit law at the time, the trial judge rejected this request. The judge told the jury that official acts included anything the public official did “under the color of official authority.”

As the Court of Appeals noted, this was completely correct at the time. The trial court and prosecutors could not be faulted for the instruction. But the McDonnell decision, which came down just a few weeks after Silver was sentenced, changed the rules.

In light of McDonnell, Silver was convicted based on a broader definition of “official act” that is no longer the law. The Court of Appeals noted that some of the things Silver did, such as obtaining state grants or introducing official resolutions in the House, could still quality as official acts after McDonnell. But other things included in the indictment, such as writing letters or attending meetings on behalf of his benefactors, would not.

It was impossible for the Court of Appeals to be certain which of Silver’s actions the jury actually relied upon, or how they would have viewed those actions if they had been instructed consistent with the McDonnell holding. That meant it was possible Silver was convicted for political favors that would not meet McDonnell’s definition of official acts and so would not be a crime. Accordingly, the Court of Appeals vacated the convictions and ordered a new trial to allow a properly instructed jury to consider the evidence.

The Post-McDonnell World

The Silver case provides a good case study of the state of public corruption law in the post-McDonnell world. Silver received about $4 million in secret benefits from individuals and companies that were seeking his help in his official capacity. Whether these corrupt deals were actually criminal has now been cast into doubt by the McDonnell case.

McDonnell and his supporters argued that his convictions risked criminalizing routine political courtesies and constituent services for those who support a politician. Such interactions are indeed an integral part of politics. And as long as we have a system of privately funded campaigns, politicians inevitably will respond to their supporters.

But Silver was not simply acting on behalf of routine political supporters — individuals who gave him campaign contributions or helped him raise legal contributions from others. Like Governor McDonnell, Silver was receiving personal benefits that went into his own pocket. Those gifts were secret, not publicly disclosed for the voters to see.

The essence of corruption is politicians acting not for the good of those they are elected to represent but in order to enrich themselves. Corrupt politicians abuse the trust of their public office by acting not on behalf of all their constituents but on behalf of those who are secretly paying them off. And access to the corridors of power becomes simply another commodity available to those willing and able to pay.

By its obsessive focus on a narrow and overly legalistic definition of “official acts,” the McDonnell Court missed the corruption forest for the trees. The key to corruption is not the precise nature of what the politician does. It’s the overall corrupt relationship, including whether support is public or secret, whether it is within any applicable legal limits, and whether it goes to the politician’s campaign or into his or her personal bank account. McDonnell imposes precise limitations on the quo side of a bribery transaction, while ignoring the overall corrupt relationship that allows a public official to secretly profit from his or her position.

The original jury instructions in Silver’s case embodied this concept: corruption may be found when there are secret payoffs to a politician in exchange for any actions done “under the color of official authority.” There are many things done under the color of official authority that do not meet the McDonnell definition of “official act.” But regardless of how large the personal benefit or how corrupt and secret the relationship, sale of those political favors is now outside the reach of federal corruption law.

This is the unfortunate result of the McDonnell case. The wealthy and connected are free to keep politicians in their back pockets through secret, personal gifts. In return, those politicians may provide political favors, grease the wheels of government, and provide access to government power. They are free to skate right up the “official act” line, personally enriching themselves through their public office, while the general public is kept in the dark.

It’s Not Over for Silver

It’s important to recognize that the Second Circuit did not find the evidence against Silver was insufficient, just that the jury was not properly instructed. The United States Attorney’s Office promptly announced that it intends to re-try the case. Former U.S. Attorney Bharara Tweeted that the evidence was strong and he expects Silver to be convicted again after a new trial.

The case on retrial will certainly be more challenging for the government. The universe of actions that may qualify as “official acts” has been substantially narrowed. Some of Silver’s actions fall outside of the statute of limitations, and that may be an issue in the new trial as well. The Court of Appeals also suggested that some of Silver’s actions, even if they did amount to official acts, might have been so insubstantial that a jury would not find they satisfied the quo requirement for a corrupt relationship. That defense argument will likely be a focus of the new trial as well.

Silver clearly won the battle in the Second Circuit. It remains to be seen whether he ultimately will win the war. But there’s no doubt the McDonnell decision has made rooting out and prosecuting public corruption significantly more challenging.

That’s the true legacy of Bob McDonnell: making life easier for corrupt politicians everywhere.

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You can read more of my commentary on the McDonnell case here:

Supreme Court Narrows Federal Bribery Law in a Win for Bob McDonnell

The Bob McDonnell Case May Have Been Won Months Before Trial

Bob McDonnell’s New Trial Motion and the Definition of “Official Act”

Bob McDonnell, Bribery, and “Official Acts” – Part II

Update: Rod Blagojevich’s Original Sentence Unchanged at Resentencing

At a resentencing hearing today, U.S. District Judge James Zagel sentenced former Illinois Governor Rod Blagojevich to the same fourteen-year sentence the judge had originally imposed in 2011. Blagojevich (known as “Blago”) was convicted on eighteen felony counts of corruption based on various “pay to play” schemes involving his powers as governor, including a scheme where he tried to obtain money or a job in exchange for appointing the successor to former U.S. Senator from Illinois Barack Obama.

rod-blagojevich

Resentencing was necessary because five of Blagojevich’s convictions had been thrown out by the U.S. Court of Appeals for the Seventh Circuit. The court of appeals concluded that the charges based on Blago’s scheme related to filling the Senate seat may have rested on an improper legal theory. Those charges were based in part on evidence that Blago had tried to trade that appointment for a favorable government job for himself; in other words, he would appoint a successor favored by Obama in exchange for a seat in President Obama’s cabinet. (That deal never came to pass because the President and his staff refused to agree.) But the court of appeals concluded that this kind of transaction, trading one political appointment for another, was simply political “log rolling” that takes place all the time and could not form the basis of a corruption conviction. (I wrote in more detail about the Seventh Circuit opinion in this post.)

Blagojevich had also hoped the Supreme Court might hear his case, particularly in light of the Court’s recent decision to accept review of and then reverse the corruption convictions of former Virginia Governor Bob McDonnell. But those hopes were dashed when the high court declined to accept Blago’s appeal.

At the resentencing, Blago’s attorneys argued he should be released much earlier in light of the vacated convictions. But the government pointed out that even without those charges the sentencing guidelines would have called for the same sentence, based on the other corruption schemes for which he was convicted. In addition, although the court of appeals rejected one theory related to the attempted sale of the Senate seat, there had been plenty of evidence at trial concerning efforts by Blago to solicit other things of value in exchange for that appointment. Prosecutors argued that the fundamental picture concerning the nature of Blago’s misconduct had not changed. Judge Zagel apparently agreed.

So after four years of appeals, Blago is right back where he started: in prison until 2024.

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The Bob McDonnell Case May Have Been Won Months Before Trial

The U.S. Supreme Court unanimously overturned Bob McDonnell’s corruption convictions on June 27. The Court held that the actions McDonnell took in exchange for the secret gifts and loans he received from businessman Jonnie Williams did not constitute “official acts” within the meaning of federal bribery law. I’ve written here and here about why I think the Court’s decision is wrong. But in this post I’d like to examine a different aspect of the case: how a tactical move by the defense, months before trial, may well have been the key to McDonnell’s ultimate victory.

As I noted, the basis of the Supreme Court’s decision was its conclusion that McDonnell did not perform “official acts.” If you’ve been reading the commentary about the case for the past two years, you could be forgiven for thinking it was always clear that the definition of “official act” was the key issue. Virtually all media reports focused on the question of “official acts.” At trial, in the court of appeals, and in the Supreme Court, both sides agreed this was the relevant test. In its decision the Supreme Court simply noted, with no analysis, that both sides agreed the government was required to prove that McDonnell agreed to perform “official acts” in exchange for the bribes.

But in fact, it’s far from clear that this focus on “official acts” was the proper legal standard by which to judge McDonnell’s actions. That this became the central legal issue in the case is a testament to the skill of McDonnell’s defense team. By convincing both the prosecutors and the trial court that this was the correct legal standard, they may have won McDonnell’s case months before his trial even began.

IMG_3053

The Definition of “Official Act”

The Supreme Court began its analysis by stating: “The issue in this case is the proper interpretation of the term ‘official act.'” The definition of “official act” in question comes from the federal bribery statute, 18 U.S.C. §201.  Section 201(a)(3) provides:

the term “official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.

Under Section 201(b)(2)(A), a public official is guilty of bribery if he or she “corruptly demands, seeks, receives, accepts, or agrees to receive or accept” anything of value in exchange for being influenced in the performance of any such “official act.”

The Supreme Court agreed with McDonnell that this definition of “official act” envisions some formal exercise of government power; a public official making a decision or taking action on a particular question or matter. The bulk of the legal portion of the Court’s opinion is a rather dry analysis of the “official act” definition quoted above, with the Court using tools of statutory construction to decide what is meant by a “decision or action on” a “question, matter, cause, suit, proceeding, or controversy.”

The Court held that if all McDonnell agreed to do was introduce Williams to others in the Virginia government who might help him, or hold an event at the Governor’s mansion to promote Williams’ product, these were simply routine political courtesies and did not represent the kind of exercise of government power that this definition suggests. Because the jury was not properly instructed on the definition of “official act” as announced by the Court, the convictions were vacated and the case sent back to the lower courts.

This may all sound unremarkable, but for one fact: McDonnell was never charged with violating 18 U.S.C. §201. That statute applies only to bribery by federal public officials or those acting on behalf of the federal government. As a state governor acting on state matters, McDonnell was not covered. The really unusual thing about the McDonnell opinion is that it consists almost entirely of analysis of a statute that no one in the case was charged with violating.

The Charges in McDonnell’s Case

McDonnell was actually indicted for violating two different corruption statutes: Hobbs Act extortion under color of official right and honest services wire fraud. These are two of the most common vehicles for the federal prosecution of state or local corruption. The Supreme Court held, in Evans v. United States, that Hobbs Act extortion under color of official right is basically the equivalent of bribery. And in the landmark 2010 case of Skilling v. United States, the Supreme Court held that honest services fraud applies only to bribery and kickbacks.

Both the Hobbs Act and honest services fraud, therefore, may be used to prosecute bribery — but neither statute defines that term. From the beginning of the case, McDonnell’s defense team successfully argued that since these statutes don’t define bribery, courts should use the definition of bribery found in a different federal statute, 18 U.S.C. §201. And this led to the focus on whether McDonnell had performed “official acts” within the meaning of that law.

At first glance this argument seems reasonable: why not look to another federal statute for the definition of bribery under the Hobbs Act and honest services fraud? But as I argued in greater detail in this earlier post, using the Section 201 definition of bribery for purposes of these other statutes actually makes little sense.

In Skilling the Court said that honest services fraud applies to bribery – but it didn’t say “bribery as defined in 18 U.S.C. §201.” And upon reading Skilling it is clear that the Court had a broader, more general concept of bribery in mind. For example, honest services fraud applies to state and local public officials like McDonnell who would not be subject to bribery charges under § 201. It also applies to private sector bribery, such as an employee who violates his duty of honest services to his employer by accepting payments from a competitor to sell his employer’s secrets. Private sector bribery is not covered by 18 U.S.C. §201 and private individuals cannot, by definition, perform “official acts.” It cannot be that bribery for purposes of honest services fraud is equivalent to bribery as defined by 18 U.S.C. §201, because much of the bribery unquestionably covered by honest services fraud would not violate §201.

When the Skilling Court defined honest services fraud it looked to the broader universe of bribery law and drew upon many cases that would not have fallen under 18 U.S.C. §201. In fact, the Court expressly noted (in footnote 45) that honest services fraud, as it was defining it, reached well beyond the scope of 18 U.S.C. §201.

Similarly, Hobbs Act extortion under color of official right applies to bribery by state and local officials, who are not covered by Section 201. The definitions of Section 201 are therefore similarly inadequate to cover all of the conduct encompassed by Hobbs Act extortion.

The McDonnell case might also leave the impression that every instance of federal bribery under Section 201 involves “official acts” – but that too is incorrect. Section 201 defines three different ways to commit bribery, and only one of them involves official acts. Bribery is also committed by an official who accepts a thing of value in exchange for being induced to do or omit to do any act in violation of his or her official duty (18 U.S.C. §201(b)(2)(C)) or in exchange for agreeing to help commit a fraud against the United States (18 U.S.C. §201(b)(2)(B)). Even within the federal bribery statute itself, the crime of bribery is not limited by a focus only on whether an official performed “official acts.” Why should bribery for honest services fraud or the Hobbs Act be so limited?

The Essence of Bribery

Bribery is an ancient common-law crime that was around long before Congress attempted to define it in one statute. There is nothing magical about the definition in 18 U.S.C. §201, and as we’ve seen, that definition is inadequate to capture all cases covered by honest services fraud or Hobbs Act extortion. The key to bribery is the corrupt agreement to be influenced, or quid pro quo. It’s the influence component that is critical, more than the precise nature of the action taken. Bribery corrupts the political system because the actions of the public official are being altered for an improper purpose. The recipient of a bribe is influenced to act not in the best interests of all but rather to benefit the person who paid the bribe. Similarly, the bribe payer obtains political favors or exercises of power that are unavailable to the general public, thanks to a corrupt deal to reward the public official in exchange.

When defining bribery, the Supreme Court could have looked to many sources. For example, one standard authority, the Model Penal Code (§240.1), defines bribery as agreeing to accept “any pecuniary benefit as consideration for the recipient’s decision, opinion, recommendation, vote or other exercise of discretion as a public servant.” The heart of the crime is the same: the quid pro quo, exchange of something of value to influence an official’s discretionary action.  But the language is much more general than §201(a)(3) and does not include the specific focus on a “question, matter, cause, suit, proceeding or controversy.”

Other possible sources include other laws. In a case involving the Virginia governor it might make sense, for example, to consider the Virginia state bribery statute, since it was the citizens of Virginia to whom McDonnell owed a duty of honest services. Virginia law tracks the Model Penal Code and provides that a public official is guilty of bribery if he or she accepts any pecuniary benefit from another in exchange for being influenced in a “decision, opinion, recommendation, vote or other exercise of discretion as a public servant.” VA Code §18.2-447(2). This definition, particularly the references to the official making a “recommendation” or the “exercise of discretion,” seems clearly to cover some of the actions taken by McDonnell.

The Court in McDonnell also could have looked to the many other state and local bribery cases that historically have been prosecuted as honest services fraud. If it surveyed those cases it would have found a wide variety of state law definitions of bribery that do not include the restrictive “official act” definition of Section 201.

In short, there is no reason to believe that meeting the precise definition of “official act” in 18 U.S.C. §201 should be required in all federal bribery prosecutions under all statutes. Up until McDonnell, the Supreme Court had never held that the specific language of Section 201 applied in prosecutions of honest services fraud or Hobbs Act extortion. But thanks to the efforts of McDonnell’s defense team, by the time the case arrived at the Supreme Court everyone, including the Justices, simply assumed this was the correct standard.

How “Official Acts” Became the Focus

So how did the McDonnell case end up focusing on “official acts?” There is some suggestion in the early pleadings that this was not always a foregone conclusion. In a defense motion filed on January 21, 2014, the same day the indictment was returned, the defense said the government had suggested that bribery under honest services fraud and the Hobbs Act may not require proof of “official acts” as defined in 18 U.S.C. §201. (It’s unclear when and where the government may have made that argument; perhaps it was in pre-indictment meetings with the defense team.) In that same motion the defense argued vigorously against this broader definition and pushed their claim that the government was required to prove “official acts.”

By the time the government responded to that defense motion in February, it appears the prosecution had made a tactical decision to agree that proving “official acts” as defined in §201(a)(3) was required. From that point on, up to and including in the Supreme Court, both sides proceeded on the assumption that this was the proper standard. Although some organizations that filed amicus briefs expressed some doubts on this point, for the most part everyone else also agreed that the government had to prove McDonnell performed “official acts.”

It appears to me the defense made an aggressive early effort to narrow the playing field to McDonnell’s advantage by insisting that the “official act” definition applied, and the prosecutors ultimately acquiesced. This may be a decision the government now regrets.

The Consequences of a Definition

It’s hard to overstate the importance to McDonnell’s case of this focus on “official acts.” First of all, from day one, it allowed the defense to shift the narrative: “This case is not really about corruption and buying access, it’s about a technical dispute over the meaning of a statute. Let’s not focus on the corrupt deal where the Governor agreed to use the powers of his office to benefit the man who was secretly paying him off. Instead, let’s focus on whether McDonnell’s actions fit some precise statutory definition.” Legalistic and kind of boring; not sexy and corrupt.

Lawyers all know the old saying: “When the facts are with you, pound the facts. When the law is with you, pound the law. And when neither the facts nor the law are with you, pound the table.” The facts clearly were not with McDonnell; whether the law was with him is a matter of debate, but there’s no doubt the defense did a great job of pounding the law and thereby shifting the entire focus of the case.

Similarly, in the Supreme Court, the emphasis on “official acts” meant that we ended up with an opinion consisting largely of a dry, lawyerly statutory analysis of what precisely is meant by a “decision or action on” a “question, matter, cause, suit, proceeding or controversy.” If this had not been the focus, perhaps the Court would have been forced to grapple with the nature of the crime of bribery itself – the quid and the pro, not just the quo – and the overall corrupt agreement between McDonnell and Williams. Perhaps the opinion would have stepped back and seen the big picture, how secretly purchasing the kind of access and influence that Williams obtained is precisely what the crime of bribery is supposed to prevent. Instead, the Court dove down into the weeds of statutory interpretation and never emerged.

We will never know for certain whether the outcome in McDonnell would have changed had the definition of “official act” not become the focus of the case. But the defense victory on this one legal issue, months before trial and more than two years before the Supreme Court’s decision, may ultimately have been the key to McDonnell’s win.

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Supreme Court Narrows Federal Bribery Law in a Win for Bob McDonnell

Update 9/8/16: The Justice Department announced today that it will not re-try the McDonnells and will be dismissing all charges.

 

Suppose I’m a state governor who knows there are many people who would like to meet with members of my cabinet or other state officials to press for some particular action. I set up a system where I say, “If you want me to arrange for you to meet with a public official to make your pitch, you pay me $10,000. It won’t be disclosed to anyone, I’ll just put it in my pocket. I’m not agreeing to influence what decision is made, I’ll just get you in the room. But if you don’t pay, no meeting.”

Most people would probably consider such a “pay for access” system to be corrupt. Access can be critically important. If two companies are competing for a government contract, the one that is able to get a personal meeting with the deciding official is likely to have a significant advantage – particularly if that meeting came at the request of the official’s boss, the highest elected official in the state.

But after today’s decision in McDonnell v. United States, according to the U.S. Supreme Court, although such behavior may be “distasteful” or “tawdry,” it does not violate federal bribery law. This unfortunate decision dramatically limits the scope of federal anti-corruption statutes by adopting an artificially narrow interpretation of “official action.” It’s a discouraging day for anyone concerned about the influence of money in politics.

In a unanimous opinion by Chief Justice Roberts, the Court today vacated the convictions of former Virginia Governor Bob McDonnell. McDonnell and his wife Maureen were convicted on multiple counts of corruption back in September 2014. The case centered on their relationship with a businessman named Jonnie Williams. Williams owned a company that made a dietary supplement called Anatabloc, and he was interested in having Virginia universities conduct research studies of Anatabloc to help him obtain FDA approval.

The evidence at trial established that Williams gave the McDonnells more than $170,000 in gifts. These included paying for the caterer for their daughter’s wedding, a Rolex watch, a shopping spree in New York for Maureen McDonnell where she purchased more than $10,000 in designer gowns, and $120,000 in no interest, no paperwork “loans.”

In exchange, the government charged, McDonnell agreed he would seek to promote Anatabloc within the Virginia government and seek to have Virginia universities perform the critical research studies. But the evidence did not establish that McDonnell’s efforts were particularly substantial or successful. He asked some government officials to meet with Williams to discuss possible studies of Anatabloc, hosted a product launch event at the Governor’s mansion, and made a few other inquiries on Williams’ behalf, but Williams never got the desired research studies or any other government benefit.

The McDonnells were convicted of two corruption offenses, Hobbs Act extortion under color of official right and honest services mail and wire fraud. When it comes to public corruption, both of these statutes effectively operate as bribery by another name. Bribery requires a corrupt quid pro quo: in exchange for receiving something of value, the public official agrees to use the power of his or her office to benefit the bribe payer.

The issue therefore boiled down to whether McDonnell’s conduct amounted to bribery under these corruption statutes. The parties throughout the case had agreed that honest services fraud and Hobbs Act bribery should be defined by using the language of the principal federal bribery statute, 18 U.S.C. § 201 (which applies only to federal public officials and was not used in the McDonnell case). As I’ve argued elsewhere, this is a questionable proposition for a number of reasons. But the Supreme Court agreed to resolve the case on that basis, and held that the outcome in McDonnell’s case should be controlled by the language of Section 201 – a crime with which he was never charged.

Section 201 defines bribery, in part, as a public official corruptly accepting a thing of value in exchange for agreeing to be influenced in the performance of an “official act.” “Official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official . . . .” There was no question that McDonnell accepted things of value from Williams; the quid side of the equation was not at issue. The case boiled down to whether the steps taken by McDonnell fit this legal definition of “official act” — in other words, whether they were a legally sufficient quo.

Image of former Gov McDonnell. The Bob McDonnell bribery cases narrowed the scope of federal corruption law

McDonnell’s Conduct and “Official Acts”

Throughout the case, the defense had maintained that what McDonnell did for Williams did not amount to official acts under federal bribery law. McDonnell’s actions, they argued, were mere routine political courtesies that might be extended to any supporter or constituent. McDonnell may have introduced Williams to government decision-makers, but he never tried to put his “thumb on the scale” of any decision that those officials made. The critical distinction, they argued, was between providing mere access and actually engaging in the exercise of official power.

In an opinion that spends a good deal of time parsing the specific language of Section 201 quoted above, the Supreme Court agreed with McDonnell. The Court noted that determining whether there were “official acts” under Section 201 requires two steps: first, the Court must determine whether there was a “question, matter, cause, suit, proceeding, or controversy,” and if so, then whether the public official took any “decision or action on” that proceeding or controversy.

The Court first held that the terms “question, matter, cause, suit, proceeding or controversy” connote some kind of formal and structured exercise of government power, such as a lawsuit, determination by an agency, or hearing before a committee. The language suggests a specific and focused proceeding where something concrete is to be resolved. Simply arranging a meeting or making a phone call, the Court said, does not rise to this level.

The Court then considered whether making a phone call or arranging a meeting could be considered a “decision or action on” a proceeding or controversy, even if it was not a cause, suit, proceeding or controversy itself. The Court agreed with McDonnell that again these actions were insufficient. Making a phone call, arranging a meeting, or hosting an event is not a “decision” or “action” “on” any matter, suit, or controversy. Again, the language of the statute suggests some formal exercise of power by the official and some kind of substantive decision or action.

The government had argued for a broader interpretation of official acts that would encompass a wider range of activities routinely carried out by public officials, but the Court concluded that its narrower definition was required. Any broader reading, the Court held, would have dangerous constitutional implications due to the potential to criminalize many routine interactions between politicians and supporters that are an inherent part of our current political system. In addition, the government’s broader interpretation posed potential federalism concerns, giving federal prosecutors the power to set the standards of ethics and good behavior for state and local officials.

But the case was not a complete win for McDonnell. The Court rejected his argument that the statutes under which he was convicted should be struck down as unconstitutionally vague, holding that any potential vagueness was cured by the Court’s narrowing interpretation. It also rejected his request that the Court find he did not perform or agree to perform any “official acts” as now defined, holding that this determination should be made by the lower courts in light of the Supreme Court’s holding.

It’s the Agreement That Matters

The actions that McDonnell actually took on Williams’ behalf, the Court held, were not themselves “official acts.” But that is not the end of the inquiry. As the Court noted, for purposes of bribery law what matters is not what the government official actually did but what he agreed to do. The crime is the corrupt deal to sell your office. So even though McDonnell’s phone calls or arranging of meetings may not have been official acts themselves, they could serve as evidence that a corrupt deal existed between McDonnell and Williams in which McDonnell did agree to take official action.

The Court observed there was evidence at trial of things that would qualify as a “question, matter, cause, suit, proceeding or controversy,” such as the question whether Virginia universities should undertake research studies of Anatabloc. A government official deciding this question would be engaged in official action, as would another official (such as McDonnell) who tried to pressure or persuade that official to act.

The government failed to prove that the things actually done by McDonnell rose to the level of “decisions or actions on” any of these matters. But if there was proof that McDonnell agreed with Williams to take such action, that would be sufficient.

This will likely be the focus of the case going forward. The Fourth Circuit must consider whether there was sufficient evidence introduced for a properly instructed jury to conclude that there was an agreement between Williams and McDonnell for the Governor to engage in official acts – even if he ultimately did not really follow through or was unsuccessful.

What Happens Now

The key problem with McDonnell’s conviction, the Court held, was that the jury instructions did not accurately reflect the legal definition of “official act” that the Court has now adopted. As a result, McDonnell may have been convicted for conduct that does not violate federal bribery law. At a minimum, therefore, he is entitled to a new trial that concludes with new, proper jury instructions.

For now, the Court has sent the case back to the Fourth Circuit. That court is to decide whether, given the evidence at trial, a properly instructed jury could possibly find that an agreement existed between McDonnell and Williams that McDonnell would perform official acts in exchange for the gifts. If so, he could be re-tried and potentially convicted again. On the other hand, if the Fourth Circuit concludes that, in light of the Supreme Court’s holding, there was not sufficient evidence to prove that such an agreement existed, then McDonnell is entitled to have his case dismissed altogether and there will be no new trial. The Supreme Court said it was expressing no opinion on those questions.

Even if the Fourth Circuit determines that the evidence was potentially sufficient, it will be up to the government to decide whether they want to re-try the case. It seems likely that they would, but they would have to make that judgment in light of the Supreme Court’s holding, their own assessment of the evidence, and their judgment about the proper allocation of prosecutorial resources.

Beyond McDonnell, this case represents another narrowing of federal corruption laws by the U.S. Supreme Court. Six years ago in Skilling v. United States, the Court scaled back honest services fraud by limiting that theory to bribery and kickbacks, thus excluding other corrupt conduct such as acting on conflicts of interest. Now in McDonnell the Court has limited all of federal bribery law to an artificially narrow category of “official acts.”

The Court focused solely on the quo side of the bribery, acting out of professed fears that without a narrow definition of “official act” routine political courtesies extended in return for campaign contributions and routine support might  be criminalized. But this fails to take into account both sides of the bribery equation. This was not a campaign contribution case; the gifts from Williams to McDonnell were personal and went into his own pocket. The nature of the gifts themselves is substantial evidence of a corrupt agreement, which would not be true in a case involving routine campaign contributions. It’s not enough that there be a gift; it must be a corrupt gift. By focusing exclusively on the particular trees of McDonnell’s actions rather than the entire quid pro quo agreement, the Court missed the corrupt forest that was the relationship between McDonnell and Williams.

The Supreme Court has essentially ruled that using money to buy access the “little guy” can never hope to have is just politics as usual and is not corrupt — even when the money is in the form not of public campaign contributions but of secret, undisclosed personal gifts. The Court’s artificially narrow concept of “official action” has once again carved out a safe harbor in federal corruption law for behavior that most would consider not just unseemly, but criminal.

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Supreme Court Affirms Expansive Federal Criminal Jurisdiction in Taylor

On June 20, 2016 the U.S. Supreme Court issued its opinion in Taylor v. United Statesa case that was argued last February.  The defendant, David Taylor, was convicted of violating the Hobbs Act for taking part in two home invasion robberies near Roanoke, Virginia with members of a gang known as the “Southwest Goonz.”  The gang routinely targeted the homes of known drug dealers, hoping to find large quantities of cash and/or drugs along with victims who might be unlikely to report the crime.

In the crimes for which Taylor was convicted the robbers actually obtained only $40 in cash, some jewelry, and a couple of cell phones.  Taylor also sought to introduce evidence that even if the intended victims were drug dealers, they only sold locally-grown marijuana within the state of Virginia. He argued that the small-time and relatively unsuccessful robberies of purely local drug dealers did not have an effect on interstate commerce sufficient to support federal criminal jurisdiction under the Hobbs Act.

In a 7-1 holding, the Court rejected Taylor’s argument. The Hobbs Act requires that a robbery have an effect on interstate commerce or other commerce over which Congress has jurisdiction. Because Congress has substantial authority over the nationwide market in controlled substances, the Court said, any robbery of a drug dealer will affect commerce over which Congress has jurisdiction. And because the Hobbs Act applies to attempted robberies, this will be true even if, as in Taylor’s case, the defendant did not actually obtain any drugs.

In other words, if the government proves beyond a reasonable doubt that a defendant was attempting to rob a drug dealer, that will satisfy the federal jurisdictional requirements of the Hobbs Act whether or not that robbery was successful. The government does not need to prove that the drug dealer victim actually sold drugs across state lines or any other actual effect on interstate commerce.

The holding in Taylor is relatively narrow because it is limited to cases involving robberies of those engaged in the commerce of illegal drugs. If a defendant robbed someone who, for example, grew tomatoes in his back yard and sold them only at local markets, the outcome could be different and a more substantial effect on interstate commerce might be required. But Congress has such expansive federal jurisdiction over the market in controlled substances that any attempt to affect that market through robbery will subject a defendant to federal jurisdiction.

In short, the Hobbs Act now serves as a catch-all federal robbery statute that applies to any attempt to rob a drug dealer, no matter how local, trivial, or unsuccessful.  Justice Thomas dissented, arguing that a more substantial showing of an effect on interstate commerce should be required before such a small-scale, local robbery can be prosecuted in federal court.

For a more detailed analysis of the facts and arguments in Taylor, see this post that I wrote about the case back when it was argued.

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Extortion Distortion: Ocasio v. United States

In criminal law, we ordinarily think of perpetrator and victim as two distinct entities. It would be nonsensical, for example, to talk about me robbing myself or defrauding myself. But the same may not be true of an extortion conspiracy under the Hobbs Act. In Ocasio v. United States, the Supreme Court ruled 5-3 that a defendant may be charged with conspiring to extort money from himself.

So what makes such a contortionist extortionist possible? Although it sounds a bit bizarre, this result doesn’t represent some new watershed in white collar crime or dramatic expansion of federal criminal jurisdiction. It’s simply the logical, albeit unfortunate, outgrowth of a questionable Supreme Court decision more than two decades old.

Samuel Ocasio was one of dozens of Baltimore police officers involved in a widespread corruption scheme with the owners of a garage called Majestic Auto Repair. Police officers would refer drivers involved in car accidents to Majestic for necessary repairs, and in return the garage owners would pay the officers $150 to $300 per car. When the scheme came to light Ocasio, a number of other officers, and the owners of Majestic were charged with conspiracy to commit extortion under the Hobbs Act.

Extortion usually connotes payments made under some kind of duress; think burly guy smacking his palm with a baseball bat while he recommends that you buy the “health insurance” he is selling. But the Hobbs Act also prohibits extortion “under color of official right,” which essentially operates as bribery by another name. And because the federal bribery statute generally applies only to federal officials, prosecutors frequently turn to Hobbs Act extortion to prosecute state and local bribery schemes such as that in Ocasio.

Evans and Extortion Under Color of Official Right

The use of Hobbs Act extortion to prosecute bribery has its roots in a 1992 Supreme Court Case, Evans v. United States. Evans, a county commissioner in Georgia, was convicted of extortion under color of official right for accepting money in exchange for a favorable zoning decision. The Court rejected Evans’ claim that he had to actually induce the payment or “shake down” the payer to be guilty of extortion. It held that at common law extortion under color of official right was the “rough equivalent of what we would now describe as ‘taking a bribe.’” It was enough that a public official accepted a payment knowing that it was given in exchange for some exercise of official power.

Justice Thomas wrote a vigorous dissent in Evans, joined by Justice Scalia and Chief Justice Rehnquist. He argued that bribery and extortion had always been distinct crimes and that the majority’s decision obliterated that distinction. In particular, in a bribery case both sides – the bribe payer and the bribe recipient – are guilty parties to a corrupt deal, and both may be prosecuted. But in extortion, the person who pays the official is considered a victim, not a willing and culpable participant.

Because the payer of extortion is generally considered a victim, extortion under color of official right applies only to public officials. On its face, the Hobbs Act does not punish the payment of the extortion. What Evans resulted in, therefore, was an oddity probably unique in criminal law: a statute that prohibits bribery but only punishes the public official side of the bribe transaction. More than twenty years later, the implications of that decision led to the dispute that landed before the Supreme Court in Ocasio.

Once Evans declared extortion under color of official right to be equivalent to bribery, it was predictable that prosecutors in appropriate cases would seek a way to charge the payer’s side of those bribery transactions. Some cases have charged bribe payers with aiding and abetting their own extortion by the officials they were paying. An equally inelegant theory is that used in Ocasio: prosecutors indicted the garage owners and Officer Ocasio for conspiracy to violate the Hobbs Act, charging that the owners conspired with Ocasio to extort money from the owners themselves.

In Ocasio, Baltimore police were charged with extortion conspiracy under the Hobbs Act

Ocasio and the Court’s Opinions

Ocasio’s case before the Court challenged this conspiracy theory and hinged on the language of the Hobbs Act. The statute’s definition of extortion requires that the public official obtain property from “another.” In the context of a conspiracy, Ocasio claimed, this must mean the conspirators agree to obtain property from someone outside of that conspiracy. If the co-conspirators simply agree to exchange property among themselves, he argued, they do not obtain property of “another” within the meaning of the statute.

The majority, through Justice Alito, rejected this argument. Ocasio’s conviction, the Court said, was simply a straightforward application of textbook conspiracy law: someone can be guilty of conspiracy to commit a crime even if they didn’t — or couldn’t — commit all elements of the underlying crime themselves.

For example, if I act as an agent for a Congressman to solicit bribes from defense contractors, I can be found guilty of conspiracy to accept bribes even though, as someone who is not a public official, I could not be charged with accepting bribes myself. If I participate in a bank robbery by providing the robbers with inside information about the bank vault and security, I’ve conspired to commit bank robbery even if I never take part in the actual robbery itself.

In Ocasio’s case, the Court held, it’s true the garage owners, as private citizens, could not commit the crime of extortion under color of official right, and if they obtained their own money it would not be property from “another.”  But although the owners could not commit the crime themselves, they could conspire to help officer Ocasio commit it. Ocasio violated the statute by obtaining property from another — which simply means someone other than Ocasio, in this case, the owners — and the owners agreed to help him do it. Accordingly, the conspiracy charge was not inconsistent with the language of the Hobbs Act, even though the “victims” whose property was obtained were also part of the conspiracy itself.

The Court rejected concerns that this holding might make even innocent extortion victims liable for conspiring with public officials who were shaking them down. There is a distinction, the Court noted, between grudging consent given by a payer who feels he has no alternative and the proof of intent required to establish that the payer knowingly and voluntarily joined a conspiracy. Only the latter is the equivalent of bribery that would render the payer equally as culpable as the public official.

Justice Breyer wrote a brief concurrence, saying that the convoluted result made him tend to agree with Justice Thomas that Evans was probably wrongly decided. Nevertheless, he concluded, Ocasio had not asked the Court to overrule Evans, and given that case’s holding the majority opinion was correct as a matter of conspiracy law.

Justice Thomas, not surprisingly, dissented and reiterated his view that Evans was a mistake. He argued the Court should not compound the error by extending the reasoning of Evans to encompass Hobbs Act conspiracy. Justice Sotomayor, joined by Chief Justice Roberts, wrote a separate dissent agreeing with Officer Ocasio that the most natural reading of the statutory language required the members of the conspiracy to obtain the property of someone outside the conspiracy.

The Impact of Ocasio: Not Much

I think Justice Breyer has it right; if we start with the Evans holding as a given, then Ocasio seems correct. The linguistic gymnastics required to frame a charge against the bribe payers in what is really a bribery case do highlight the shaky foundation of the Evans holding equating extortion with bribery. But as the majority noted, if you accept Evans, then basic conspiracy law dictates the result in Ocasio.

The dissenters expressed concerns about the breadth of federal criminal statutes and the scope of conspiracy law. Justice Sotomayor said she feared the Court’s ruling would invite prosecutors to round up all parties in an extortion scheme, charge everyone with conspiracy, and see “what sticks and who flips.” They also raised federalism concerns, questioning whether it was appropriate for the federal government to pursue local corruption cases that could be left to the states.

Debates about sweeping federal criminal statutes and the dangers of prosecutorial power are common these days. The pending case involving the corruption convictions of former Virginia Governor Bob McDonnell (also a Hobbs Act case) contains many of the same themes. But in Ocasio, concerns about inappropriate charges have little force. No one suggests the owners of Majestic were not blameworthy or did not deserve to be prosecuted.

As for federalism concerns, there are already many ways for federal prosecutors to charge state and local bribery. Even before the Court’s decision in Skilling v. United States, for example, it’s been clear that honest services mail and wire fraud applies to bribery and kickback schemes like that in Ocasio. Under certain conditions the Travel Act (18 U.S.C. § 1952) and the Federal Program Bribery statute (18 U.S.C. § 666) also apply to state and local corruption. It’s even likely that prosecutors could have named Majestic as a RICO enterprise and indicted everyone involved for violating RICO (18 U.S.C. § 1962) based on a pattern of state-law bribery.

In short, there are plenty of ways for federal prosecutors to pursue state and local corruption. The Hobbs Act is just one potential arrow in the prosecutor’s quiver. If Ocasio had gone the other way, I doubt there’s a single future case that would have gone unprosecuted as a result. If some members of the Court really have issues with federal prosecutors having the power to charge state and local bribery, they are several decades late to that party.

The concern about prosecutors having the power to pick and choose whom to charge with conspiracy is similarly misplaced. Prosecutors do this all the time when deciding whether a particular scheme is a true extortion scheme, where the payers are the victims, or is more like a traditional bribery scheme where the payers should be charged. That’s the essence of prosecutorial discretion and making sound charging decisions.

It’s a little disheartening to hear Justice Sotomayor, herself a former prosecutor, suggest that prosecutors might just round up everyone they see and charge them with conspiracy with no regard for their actual culpability. If that were to actually happen it would be a much bigger problem than simply the breadth of the Hobbs Act – but the presence or absence of one legal theory would not make any practical difference to such “rogue prosecutors.”

In the end, therefore, Ocasio leaves the white collar crime landscape largely unchanged. Future defendants, seeing a potential invitation in Ocasio, will likely file petitions asking the Court to overturn Evans, but it’s tough to see a current majority willing to do that. Congress, of course, could step in and clear everything up by amending the Hobbs Act, but that seems even less likely given the current gridlock on Capitol Hill.

And so the Hobbs Act remains as one of many powerful tools for federal prosecutors — and a quirky one, given the untidy legacy of Evans and its peculiar version of extortion distortion.

Note: this post is adapted from an article I published in the George Washington Law Review’s On the Docket.  You can find that article here.

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Supreme Court May Use the Bob McDonnell Case to Limit Federal Corruption Laws

Yesterday the U.S. Supreme Court heard the appeal of former Virginia Governor Bob McDonnell. As regular Sidebars readers know, I’ve followed the case closely, and I was at the Court to hear the arguments. Although it’s always risky to predict results based on the questions from the Justices, it appears that McDonnell and his attorneys have reason to feel pretty optimistic.

One reason they have for optimism is the fact that the Court agreed to hear the case at all; there was no obvious reason to do so. There was no circuit split in the lower courts that the Justices needed to resolve. A three-judge panel of the Fourth Circuit Court of Appeals unanimously upheld McDonnell’s convictions, and all the judges of that court had unanimously declined to rehear the case.

But the Supreme Court not only took the case, it took the unusual step of allowing McDonnell to remain free on bond while the case was pending. And during oral argument yesterday it became clear the Court has some deep reservations about the potential breadth of federal bribery laws.

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McDonnell and his attorneys outside the Supreme Court after the arguments

The Supreme Court Arguments 

McDonnell and his wife Maureen were convicted in September 2014 of multiple counts of federal corruption. Over a two-year period they received a series of extravagant gifts and loans worth more than $175,000 from businessman Jonnie Williams. The government charged that, in exchange, the McDonnells agreed to promote Williams’ dietary supplement, Anatabloc, within the Virginia government. (For more detail about the case and my analysis of the charges, you can read some of my earlier posts here and here.)

At the Supreme Court Noel Francisco, arguing for McDonnell, focused on what has been the defense’s primary theme throughout the case: whatever McDonnell may have done for Williams, it did not amount to “official action” for purposes of federal bribery law. He said the government proved only that McDonnell did things such as introduce Williams to other state officials or urge others within the government to meet with Williams to discuss possible research studies. Such steps, he argued, cannot constitute official action unless there is evidence that the governor also tried to influence the outcome of any subsequent meeting.

The distinction, Francisco urged, is between actually making or influencing a government decision and simply providing access to those who might do so. McDonnell, he argued, did only the latter. He said the government’s theory made it possible for politicians to be prosecuted for extending simple political courtesies to a supporter, even if they never tried to exercise actual government power or influence any government decision on that supporter’s behalf.

Some potential cracks did appear in Francisco’s argument during questioning from the Court. Chief Justice Roberts asked about a government employee who worked as a scheduler, whose job it was to arrange meetings with the governor. For that individual, he said, arranging a meeting, “I suppose, would be an official act.” Francisco initially agreed that was possible.

That quickly got him in trouble, however, because it seemed inconsistent with the governor’s claim that simply arranging a meeting can never, by definition, be a official action. Justice Kagan immediately started to probe this point with some follow-up questions, and Francisco quickly backed away from his initial concession. He said although other laws might prohibit the scheduler from taking payments for arranging meetings, it would not violate the bribery laws.

This was actually one of Francisco’s stronger points, which he made several times. Federal bribery law, he argued, is not meant to be a comprehensive ethical code that covers all misconduct. Even if bribery is interpreted more narrowly, as McDonnell urges, that would not necessarily immunize all kinds of misbehavior. There are other laws on the books, as well as personnel regulations and other potential sanctions, that may apply. But bribery law itself, he urged, needs to be more narrowly construed in order to avoid potentially criminalizing a great deal of routine political behavior.

The really tough questioning was reserved for Deputy Solicitor General Michael Dreeben, arguing for the government. Dreeben began by trying to focus the Court on the implications of McDonnell’s position. Arranging access or setting up a meeting can absolutely be official action, he argued. Otherwise a governor could set up a “pay to play” system through which he routinely demanded that people pay him in exchange for his agreement to arrange a meeting with other state officials: if you don’t pay, you don’t get the meeting. That seems to be the essence of what the bribery laws prohibit.

Dreeben argued that the implications of a ruling for McDonnell would be staggering. The Court would be saying it is acceptable for officials to sell access to government actors to the highest bidder. He argued that official action encompasses anything ordinarily done in the course of a public official’s duties, including arranging meetings and access. There is no legal basis for the carve-out that McDonnell is seeking for actions that didn’t actually influence the exercise of some government power. To hold otherwise, he argued, would be to create a “recipe for corruption.”

But for the most part, the Court didn’t seem to be buying it. The Justices, of course, have to think not only about the case before them but also about the implications for future cases of any opinion that they write. And several seemed troubled by the implications of the government’s argument that even something as routine as arranging a meeting or writing a letter could potentially support a bribery prosecution.

Justice Breyer in particular seemed very concerned about finding a limiting principle to further define federal bribery. He argued that if the legal standards are too broad it implicates the separation of powers by giving the executive branch, in the form of prosecutors, too much power to dictate the actions of legislative branch officials. He pressed both sides to help the Court find the words to craft the appropriate legal standard.

A great deal of time was spent on hypotheticals. Justice Breyer wondered whether it would be a felony if a constituent took a politician to lunch and bought an expensive bottle of wine, and after lunch the politician wrote a letter to a government agency urging it to act on a matter of interest to that constituent. Chief Justice Roberts imagined a case where a businessman takes a governor for an afternoon of trout fishing, and they discuss whether the business could get tax credits within the state. Is that a felony, he asked? Justice Kennedy asked whether it was a felony for the President to provide access to high-dollar donors.

Dreeben responded by arguing that “official action” is only one aspect of the crime and that the question of official action does not have to carry all of the weight in a bribery case. The prosecution would still have to prove a corrupt quid pro quo, a direct agreement to take the official action in exchange for the particular thing of value. In effect, he said, you have to look at the whole picture, not just the official action side of the equation: “you need to run this through all the elements of the offense.”

Looking at the whole picture, Dreeben also noted, shows why a case involving campaign contributions or routine political support would be very different from the McDonnell case. The Court’s prior decisions make clear that it is not enough simply to show a politician took actions that were desired by someone who contributed to her campaign. Given the nature of the quid, a much stronger direct quid pro quo would need to be shown. But the McDonnell case does not involve campaign contributions, and so those concerns are not implicated.

Corruption, Dreeben concluded, has to include a situation such as this, where a governor calls his Secretary of Health and says “take a meeting with my benefactor.” That means the person who paid the governor “will have the preferential opportunity that other citizens who do not pay will not have” to make their case before the Secretary. That kind of pay to play access is the essence of corruption and should be prohibited. The purpose of bribery law is to ensure that government officials act equally for the benefit of all, and not secretly to benefit those who are paying them off.

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White Collar Crime and Prosecutorial Discretion: The Inherent Tension

As I noted, it’s always risky to try to predict outcomes based on the Court’s questioning. But Deputy Solicitor General Dreeben didn’t seem to be getting a lot of love from the bench. Only Justices Sotomayor and Ginsburg seemed to be potentially in his camp. To varying degrees, all of the other Justices who asked questions seemed quite skeptical of the government’s position.

McDonnell’s case may be the latest example of the Supreme Court’s increasing discomfort with a common feature of white collar crime: broadly written laws that then rely on prosecutorial discretion to determine which cases to bring. White collar statutes tend to use expansive language in order to avoid creating loopholes or safe harbors for criminal activity. But as a result, it is often relatively easy to come up with a parade of horribles about hypothetical cases that might fall within the statute.

For example, six years ago in Skilling v. United States the Supreme Court ruled that the crime of honest services fraud should be narrowed to apply to only bribery and kickback cases. I remember during the Skilling arguments Justice Breyer (also the most vocal questioner in the McDonnell argument) expressing incredulity that an employee who called in sick to go to the ballgame could potentially be found guilty of honest services fraud. By limiting honest services fraud to bribes and kickbacks, Skilling excused the truant employee example.

But in fact Skilling did not solve Justice Breyer’s problem. An employee who uses the phone to call in sick to go to the ball game technically commits plain old federal wire fraud – there is no need to rely on honest services fraud. The employee is using the interstate wires to further a scheme to defraud his employer out of his salary. We don’t see such trivial cases clogging the federal courts because thankfully prosecutors exercise their discretion not to bring them – but legally, all of the elements of the offense are met.

Similarly, every witness interviewed by the FBI who lies about a material fact, no matter how trivial, meets the elements of the federal false statements statute. But only a relative handful of such cases end up being prosecuted, most often when there is other criminal conduct involved. If prosecutors actually brought charges every time someone lies to the FBI, they would have time to do little else.

It is similarly easy, as the Court demonstrated during the McDonnell arguments, to come up with hypothetical trivial cases that would violate the bribery laws. If I make an explicit deal with my Senator that if I buy him lunch he will write a letter to another federal agency on my behalf, then technically, yes, that meets the elements of the bribery statute. You don’t see such cases being brought because a) they probably almost never happen; and b) prosecutors recognize they are trivial and prosecuting would not be an appropriate exercise of their discretion.

Again, this breadth is a characteristic of many white collar criminal statutes. And although this did not come up explicitly during the McDonnell arguments, the government’s response to the hypothetical trivial cases effectively has to be, “Yes, that technically violates the statute, but we’d never bring such a case. Trust us.” That’s not a very satisfying answer to many on the Court these days.

This concern about the breadth of many statutes is also a component of the growing concerns these days about over-criminalization. Many are troubled by the fact that so much trivial conduct is potentially covered by federal criminal laws – even though the trivial cases usually do not end up being prosecuted.

But this system, of course, depends on prosecutors doing a good job of exercising their discretion. The Justices may feel an increasing need to limit the scope of some federal criminal statutes in light of their concerns about prosecutors’ charging practices in recent cases. For example, last year in Yates v. United States, prosecutors’ decision to charge a fishing captain with the twenty-year felony for throwing undersized fish overboard arguably led the Court to adopt an artificially narrow reading of a federal obstruction of justice statute. The year before that, in Bond v. United States, the Court expressed great concern over the government’s decision to use a statute prohibiting the use of chemical weapons to charge a jilted wife who sprinkled some caustic chemicals on a doorknob to try to harm her husband’s lover, resulting in only a minor skin irritation.

The Court may conclude that drawing some more limited statutory parameters is particularly appropriate when it comes to public corruption. As Justice Breyer emphasized, there are special separation of powers concerns at work in such cases. The fear is that if corruption laws are too sweeping, unscrupulous prosecutors might use them to take down political opponents.

The alternative to a system of broad statutes coupled with reliance on prosecutorial discretion is one of narrower laws that necessarily leave some loopholes and are easier to circumvent. During the McDonnell arguments, Justice Breyer, for one, seemed perfectly prepared to accept that. He noted that whatever standard the Court announces for “official action” will not be perfect and “will leave some dishonest conduct unprosecuted.” But that may be necessary, he argued, in order to avoid the separation of powers problems that result from the alternative of giving the prosecutor too much power to decide which conduct to punish.

Congress historically has chosen to draft deliberately broad corruption statutes to avoid making the laws easier to evade. As Dreeben noted, for decades those corruption laws have functioned reasonably well. Although no system is perfect, prosecutions involving routine political courtesies and campaign contributions are rare to non-existent – and McDonnell certainly is not such a case. The hypotheticals imagined by the Court are just that. They do not reflect the real world of federal corruption prosecutions, any more than imagined stories of Nationals fans indicted for calling in sick describe the real world of wire fraud.

The question now is whether the Court will nevertheless feel compelled once again to restrict the scope of federal criminal law, even if that means effectively creating a safe harbor for certain kinds of corruption. The impact on both pending and future prosecutions of public corruption could be dramatic.

A decision is expected by this June; Sidebars will keep you posted.

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