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: No Charges To Be Filed Against Former Oregon Governor and First Lady

Federal authorities in Oregon announced Friday they will not be filing any criminal charges against former Oregon Governor John Kitzhaber and former first lady Cylvia Hayes. The investigation led by the U.S. Attorney’s Office in Oregon had been going on for more than two years. Kitzhaber resigned in 2015 in the midst of a scandal involving allegations that Hayes may have traded on her position in his administration to obtain lucrative private consulting contracts.

I wrote about the investigation back in 2015 when it first began. This post discusses the nature of the allegations and what the grand jury might be investigating. This post talks about the law of honest services fraud and whether it might apply to Oregon’s first lady.

After a more than two-year investigation, no criminal charges. That’s sometimes the nature of white collar criminal investigations. With a street crime, such as a homicide, we know a crime has been committed. With white collar, often it takes a lengthy grand jury investigation to determine whether a crime has been committed at all — and sometimes the answer is no.

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Judge Gorsuch, White Collar Crime, and the Legacy of Justice Scalia

The confirmation battle over Neil Gorsuch, President Trump’s pick to fill the vacant seat on the U.S. Supreme Court, promises to be ugly. All aspects of his record will be thoroughly dissected — and likely distorted — by both political parties. Looming over the proceeding is Democratic anger over the Merrick Garland nomination and the threat of Republican Senators to invoke the “nuclear option” to break any Democratic filibuster. It’s destined to be one of those political knife fights that reminds everyone why they hate Washington.

Partisans on both sides will be trying to predict how a Justice Gorsuch might rule on any number of hot-button issues. But here at Sidebars we are particularly interested in how Gorsuch’s presence on the Supreme Court might influence the law of white collar crime. So I spent some time this week reading opinions written by Judge Gorsuch on the 10th Circuit Court of Appeals in cases involving white collar offenses such as mail and wire fraud, public corruption, obstruction of justice and money laundering, to see if I could glean anything from those decisions.

I didn’t find anything particularly remarkable. Most of the white collar cases where Judge Gorsuch wrote the opinion for a three-judge panel ruled in favor of the government, but that’s true of most criminal appeals. Most of the decisions were unanimous. That’s also not unusual, but at least it suggests a judge who generally colors within the lines of established precedent and is not a bomb-thrower writing dissents advocating extreme positions.

One thing I definitely learned is that Judge Gorsuch is indeed a terrific writer, as many others have noted. His opinions are clear, concise, and free of legal jargon. They are a pleasure to read, which is saying something when it comes to judicial opinions. In that regard he reminds me of Justice Kagan, in my view currently the best writer on the Court. That’s something I really admire — although I guess if you fear a Justice Gorsuch is going to gut your fundamental liberties it’s cold comfort to know he’ll do it with great style and clarity.

In any event, it appears unlikely that any of Judge Gorsuch’s opinions in white collar cases will be particularly controversial or a focus of his confirmation hearing. But that doesn’t mean there is nothing we can learn about how Justice Gorsuch might approach such cases at the high court.

Those who have studied or worked with Judge Gorsuch and know him best describe him as a judge in the mold of Antonin Scalia, the Justice whose seat he would assume. The opinions and other materials I reviewed certainly support that characterization. And if Justice Gorsuch does follow in the footsteps of Justice Scalia when it comes to criminal law, it could lead to some interesting and potentially surprising results.

Antonin_Scalia_Official_SCOTUS_Portrait

Justice Scalia’s White Collar Legacy

When it comes to Justice Scalia and criminal law, it’s complicated. Although conservative, he was definitely not a “hanging judge” ruling against criminal defendants at every opportunity. On the contrary, Scalia’s strict approach to statutory and constitutional interpretation often resulted in decisions that favored criminal defendants – and often led him to side with some of the most liberal members of the Court.

In constitutional law, Justice Scalia’s originalist approach made him suspicious of expansive notions of government power and protective of the rights of criminal defendants embodied in the text of the Constitution. In areas such as the right of defendants to confront witnesses against them (for example, Crawford v. Washington), the right to a jury trial (Blakely v. Washington), and the right to be free from unreasonable searches and seizures (Florida v. Jardines and Kyllo v. United States, for example), Scalia was a powerful voice warning against government encroachment on these fundamental constitutional liberties. On the other hand, when it came to doctrines he considered judicial inventions not found in the text of the Constitution – such as the exclusionary rule and right to Miranda warnings – he was much less sympathetic.

White collar cases more often involve the interpretation of statutes, not the Constitution. And white collar statutes are notorious for being broad and somewhat vague, using sometimes fuzzy terms such as “fraud” that are not otherwise defined. Justice Scalia authored a number of significant white collar opinions and dissents. His strict textualist approach generally led him to read white collar statutes narrowly. He was skeptical of prosecutors’ attempts to fashion expansive theories of criminal liability not directly spelled out in the statutes. Some Justices are much more willing to hold that courts should flesh out the parameters of broadly-worded criminal laws; Scalia insisted that crimes had to be specifically defined by Congress, not by judges.

For example, Justice Scalia was a long-time critic of a popular species of mail and wire fraud known as honest services fraud. Frequently used in prosecution of state and local corruption, it charges that victims were defrauded not of money or property but of their intangible right to the honest services of a politician or other individual who owed them a duty. Justice Scalia maintained throughout his career that the idea of “honest services” was too amorphous to support criminal liability and failed to provide adequate notice about what conduct was prohibited.

In Skilling v. United States in 2010 the Court responded to vagueness concerns by narrowing honest services fraud liability to cases involving bribes and kickbacks. Justice Scalia wrote a separate opinion arguing that the Court should go further and declare the honest services fraud statute unconstitutionally vague in all circumstances. (He even referred to it as “so-called honest services fraud,” a locution that President Trump might appreciate.)

In another leading mail fraud case, Schmuck v. United States (yes, that’s the real name), the issue was whether the mailings proved by the prosecution actually furthered the scheme to defraud as required by the statute. The majority adopted a broad reading of the “in furtherance” requirement and upheld the convictions. Justice Scalia dissented, criticizing the prosecution for what he deemed an overly-expansive view of the mail fraud statute. His opinion arguing that the defendant’s convictions should be reversed was joined by Justices Brennan and Marshall, two of the most liberal Justices of the 20th century.

Justice Scalia similarly favored a narrow reading of a public corruption theory called extortion under color of official right under the Hobbs Act. In 1992 in Evans v. United States, the majority held that extortion under color of official right was basically equivalent to bribery. Justice Scalia joined a dissent by Justice Thomas arguing that bribery and extortion are distinct crimes and that the majority opinion wrongfully resulted in a vast expansion of federal criminal law and the power of federal prosecutors.

Of course, strict interpretation of the statute sometimes meant the defendant lost. For example, Brogan v. United States involved the false statements statute that criminalizes lying to the government about material matters. Lower courts had created an exception to the statute, known as the “exculpatory no,” holding that prosecution could not be based on a defendant’s mere denial of guilt. Justice Scalia wrote the majority opinion holding the text of the statute contains no such exception and stating “[c]ourts may not create their own limitations on legislation, no matter how alluring the policy arguments for doing so . . . .” (He also noted the defendant’s concession that “under a ‘literal reading’ of the statute he loses.” If you had made that concession and then saw that Justice Scalia was writing the opinion in your case, you knew it was not going to be a good day.)

Recently in Yates v. United States the defendant was charged with obstruction of justice, a twenty-year felony, for throwing overboard some undersized fish that were evidence he had violated fishing regulations. During oral argument Justice Scalia expressed outrage that the government had brought such a case. But in the end he refused to join the five-Justice majority reversing the conviction on the questionable ground that fish were not “tangible objects” within the meaning of the law. Instead he joined with Justice Kagan in dissent, arguing that the plain wording of the statute compelled a ruling in favor of the government. He clearly thought the prosecution was misguided, but did not believe the solution was for the Court to adopt a strained interpretation of the statute that was contrary to its plain language.

gorsuch

Judge Gorsuch and White Collar Crime

Would Justice Gorsuch channel Justice Scalia when it comes to white collar crime? It’s always a bit dicey trying to predict how a judge would behave on the Supreme Court based on his appellate opinions. Appellate judges, of course, are bound by Supreme Court precedent, so they generally don’t have the same freedom and opportunities to decide novel legal questions. But there is reason to believe Justice Gorsuch’s approach would indeed look a lot like Justice Scalia’s.

Judge Gorsuch shares Justice Scalia’s belief in strict construction of the Constitution according to the intent of its framers. In a widely-quoted concurrence in Cordova v. City of Albuquerque, he wrote:

Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams . . .  but a carefully drafted text judges are charged with applying according to its original public meaning.

Judge Gorsuch also appears to share the concerns of Justice Scalia about overcriminalization and sweeping criminal statutes that may place too much power in the hands of prosecutors. In a law review article in 2010 Judge Gorsuch wrote: “What happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”

Judge Gorsuch’s strict textualist approach to statutory interpretation has occasionally led him, as it did Justice Scalia, to rulings that narrowly interpret criminal statutes and favor criminal defendants. One example involves a statute that makes it a crime for an individual with a felony conviction to possess a firearm, 18 U.S.C. § 922(g)(1). The 10th Circuit has agreed with the majority of courts of appeal that the government in such a case needs to prove only that the defendant knew he possessed a gun and does not need to prove the defendant knew he had a felony conviction.

Judge Gorsuch disagrees. In a classic Scalia-esque statutory interpretation argument, he has argued that the plain language of the statute requires the government to prove both – an interpretation that, if adopted, would favor defendants and place a heavier burden on the government. In one of the cases, United States v. Games-Perez, notice Judge Gorsuch’s language in his concurrence expressing disagreement with his colleagues:

Our duty to follow precedent sometimes requires us to make mistakes. Unfortunately, this is that sort of case. . . .

I recognize that precedent compels me to join the court’s judgment. But candor also compels me to suggest that we might be better off applying the law Congress wrote than the one [the court’s earlier decision] hypothesized. It is a perfectly clear law as it is written, plain in its terms, straightforward in its application. Of course, if Congress wishes to revise the plain terms of [the statute] it is free to do so anytime. But there is simply no right or reason for this court to be in that business.

Those final two sentences could have been lifted straight out of a Justice Scalia opinion: the statute says what it says, and if there’s a problem it is up to Congress to fix it, not the court.

But what a marked contrast to the writing style of Justice Scalia, who was famous for disagreeing with his colleagues in the most sarcastic and acerbic terms. In addition to being a gifted writer, Judge Gorsuch displays much more of a traditional judicial temperament than the man he would replace.

Later, dissenting from a denial of a rehearing en banc in the same case, Judge Gorsuch wrote a impassioned defense of the right of criminal defendants to be convicted only if the government proves every element of the offense: “There can be few graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land.”

Another 10th Circuit case, United States v. Makkar, involved a prosecution under the analogous drug act, which criminalizes selling substances that mimic a listed controlled substance. In another pro-defendant decision, Judge Gorsuch reversed the convictions and held that the plain language of the statute requires the government to prove the analogous substance had the same chemical structure as the controlled substance, not merely that it had the same effects on the user.

In addition to strictly interpreting criminal statutes, Judge Gorsuch, like Justice Scalia, has a history of holding prosecutors’ feet to the fire and insisting they play by the rules. For example, in United States v. Farr, a tax fraud case, Judge Gorsuch ruled in favor of the defendant and held that prosecutors had improperly convicted him under a theory of tax fraud different from the one that was charged in the indictment.

In a case that might be of interest in the current political environment, Judge Gorsuch also wrote the opinion in United States v. Hasan, reversing the perjury conviction of a Somali refugee. He ruled the trial court had erred by finding the defendant was not entitled to an interpreter when testifying in the grand jury. This was under the extremely deferential “plain error” standard of review, and it would have been easy for an appellate judge simply to defer to the judgment of the trial court. If opponents try to portray Judge Gorsuch as a cold-hearted conservative who cares nothing about the most vulnerable among us, we might see this opinion trotted out in response.

Overall, Judge Gorsuch’s opinions related to criminal law are largely uncontroversial and closely adhere to governing precedent. He definitely takes a strict approach to the interpretation of texts. He does not appear to be results-oriented and will not hesitate to rule against the government and in favor of a criminal defendant if he believes that is required. His approach to criminal law in general and white collar crime in particular does seem to be very similar to Justice Scalia’s.

At least as far as criminal law is concerned, Democrats thinking about opposing his nomination should probably consider they could do a lot worse.

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White Collar Crime, Prosecutorial Discretion, and the Supreme Court

Does the Supreme Court still believe in prosecutorial discretion? A string of cases over the past few years has to make you wonder.

Prosecutorial discretion – the power to decide whether to bring criminal charges, who to charge, what crimes to charge, and how ultimately to resolve the case – is a fundamental component of the criminal justice system. The legislature enacts the laws but the executive branch enforces them, which includes making judgments about when and how to bring a criminal case.

On the macro level, this means setting national and local law enforcement priorities and making decisions about the deployment of finite prosecutorial resources. Different administrations at different times have declared areas such as health care fraud, narcotics, illegal immigration, or terrorism to be top priorities and have allocated resources accordingly. Such decisions necessarily mean other areas will not receive as much attention; a dollar spent fighting terrorism is a dollar that can’t be spent investigating mortgage fraud.

On the micro level, prosecutorial discretion involves deciding whether to pursue criminal charges in a given case and what charges to pursue. Factors such as the nature of the offense, strength of the evidence, the nature and extent of any harm, adequacy of other potential remedies, any mitigating circumstances or remedial efforts by the accused, and prosecutorial resources and priorities all may come into play.

For federal prosecutors, policies governing how they should exercise this discretion are set forth in the U.S. Attorneys’ Manual, and in particular in the Principles of Federal Prosecution. The Principles contain detailed guidance concerning when to bring charges, what kind of charges to bring, and how to handle criminal cases, in order to “promote the reasoned exercise of prosecutorial discretion by attorneys for the government.” USAM 9-27.110.

doj seal

Prosecutorial Discretion and White Collar Crime

Prosecutorial discretion is particularly important in white collar crime. With non-white collar, or “street” crimes, the parameters of the offense tend to be more clearly defined and charging decisions often are more black and white. If there is a body on the street with nine bullets in it, you pretty clearly have a homicide. If authorities can identify who did it, that person will almost certainly be charged. The prosecutor is not likely to say, “Due to our limited resources and other priorities, we’ll take a pass on this one and let the victim’s family file a civil suit instead” – not if the prosecutor wants to keep her job, anyway.

But white collar crime is full of gray areas. White collar prosecutors deal with sometimes nebulous concepts such as “fraud” and “corruption,” and white collar statutes are written in notoriously broad and general terms. As a result, it often falls much more to the prosecutor to determine whether something is a crime at all and to decide what kind of conduct merits a prosecution.

For example, suppose a hedge fund goes belly-up, and the investors who lost their money claim they were misled about their investment. Was it fraud, or was it merely aggressive – maybe even sleazy – sales tactics followed by incompetence, mismanagement, or just bad luck? Unlike a homicide, robbery, or drug case, at the outset it may not be clear that a crime has been committed. A prosecutor might well conclude, “If I investigated this for two years, perhaps at the end I would have a provable criminal fraud case – but perhaps not. Given my resources and priorities, I’m going to focus on other cases and let the SEC and private plaintiffs pursue civil and administrative penalties in this one.”

Given these potential gray areas, what’s the best way to deter and prosecute white collar crime? Imagine two different regimes. In System #1, Congress drafts broad statutes that proscribe conduct such as fraud in general terms, in order to encompass as much potentially criminal conduct as possible. It is left to the Executive Branch, through prosecutors, to enforce those statutes and determine which cases to pursue – with that discretion tempered, of course, by the oversight of the courts.

In System #2, Congress tries to write very precise and detailed statutes that are as specific as possible in defining the prohibited conduct. Such white collar statutes would leave fewer gray areas and less room for prosecutorial discretion – in other words, they would be more like street crimes. The downside of such a system would be that it necessarily creates loopholes: the more precisely you define criminal concepts like fraud, the greater the opportunity for individuals engaged in what should be criminal conduct to skirt the law’s prohibitions.

Historically, white collar criminal law has been closer to System #1: broad statutes prohibit things like fraud or corruption, and prosecutors are entrusted to exercise their discretion to determine how to apply those laws. But in a series of decisions over the past few years, the Supreme Court has signaled it is becoming increasingly uncomfortable with such a system. These decisions have limited several significant white collar statutes, moving us closer to System #2 – although with laws narrowed by the Court rather than by Congress. In the process, the Court has removed discretion from the hands of prosecutors while also making it more difficult to prosecute some criminal conduct.

The Supreme Court Limits Prosecutorial Discretion

The first such case was Skilling v. United States in 2010. Skilling involved the proper interpretation of 18 U.S.C. § 1346, which prohibits schemes to deprive another of the “intangible right of honest services.” Honest services fraud, a species of mail and wire fraud, has been around for decades. Most cases of honest services fraud have involved relatively straightforward allegations of corruption such as bribery, kickbacks, and conflicts of interest.

But prosecutors in some cases stretched the boundaries of the theory, using honest services fraud to prosecute, for example, a university professor who helped students plagiarize work to obtain degrees to which they were not entitled; an IRS employee who improperly browsed through certain tax returns but did nothing with the information; state officials who awarded public sector jobs based on political patronage; and a state official who failed to disclose a potential conflict of interest when state law did not require disclosure. Some of these schemes seemed wrong or dishonest but were far from traditional criminal corruption. The confusion over what actually qualified as a deprivation of honest services led Justice Scalia to argue in 2009 that the law was in a state of “chaos.”

The Supreme Court finally attempted to bring some order out of this chaos in Skilling. The defendant, former Enron CEO Jeff Skilling, argued that the honest services statute should be struck down as unconstitutionally vague, but the Court disagreed. Instead, it limited the law to what it deemed the core of honest services fraud: cases involving bribery and kickbacks.

The holding in Skilling dramatically narrowed the scope of honest services fraud. This successfully removed prosecutors’ ability to use the theory in innovative ways to charge more unusual schemes. But the limitation also created safe harbors for certain conduct, such as self-dealing by elected officials, that is plainly corrupt but may no longer be charged as a violation of honest services.

In 2014, the Supreme Court decided Bond v. United States. (Although not really a white collar case, Bond is instructive as part of the same trend at the Court.) In Bond a jilted wife tried to injure her husband’s lover by sprinkling some caustic chemicals on her mailbox and doorknob. The chemicals caused only a slight skin irritation on the woman’s thumb that was easily treated with cold water. Federal prosecutors subsequently charged Bond using a felony statute that prohibits the use of chemical weapons and carries a penalty of “any term of years” in prison.

The Court ultimately held that the statute did not apply to Bond’s conduct. But an undercurrent of the case was the Court’s obvious concern over the government’s decision to apply a federal law aimed at preventing the horrors of chemical warfare to such a trivial incident. During oral argument, Justice Kennedy told the Solicitor General that it “seems unimaginable that you would bring this prosecution.” Justice Alito remarked, “If you told ordinary people that you were going to prosecute Ms. Bond for using a chemical weapon, they would be flabbergasted.”

This trend continued in 2015 with Yates v. United States. Yates was a commercial fisherman working in the Gulf of Mexico. A fish and wildlife officer boarded his boat to conduct a routine inspection and ended up citing him for having several dozen red grouper on board that were slightly smaller than the legal limit – a civil violation. The officer told Yates to keep the fish until he returned to port, where they would be seized and destroyed. Once the officer left his boat, however, Yates instructed a crew member to throw the undersized fish overboard and replace them with larger ones.

When this ultimately came to light, prosecutors charged Yates with three crimes including obstruction of justice under 18 U.S.C. § 1519, a twenty-year felony. That law prohibits the destruction of “tangible objects” in an effort to obstruct a federal investigation. Captain Yates argued before the Supreme Court that fish were not “tangible objects” within the meaning of this statute. The Court ultimately ruled in his favor, but only by adopting what I believe was an unnatural and strained interpretation of the law.

But Yates is actually more significant for what it revealed about the Court’s views on prosecutorial discretion and charging decisions. During oral argument, the Justices were clearly disturbed by the application of a twenty-year felony to this fish-dumping episode. Justice Scalia asked what kind of “mad prosecutor” would charge Yates with a twenty-year offense, and sarcastically suggested perhaps it was the same prosecutor who had charged Bond with a chemical weapons violation. Later in the oral argument Justice Kennedy remarked, “It seems to me that we should just not use the concept [prosecutorial discretion] or refer to the concept at all anymore.”

The Court’s skepticism about prosecutorial discretion surfaced again this past spring in McDonnell v. United States. In reversing the corruption convictions of the former Virginia governor, the Court adopted a narrow definition of “official act” for purposes of federal bribery law. At oral argument and in its opinion the Court imagined federal prosecutors targeting elected officials for simply attending a lunch where a supporter bought them a bottle of wine, or for attending a ballgame as the guest of homeowners who earlier had sought the official’s help.

The narrow definition of “official act,” the Court concluded, was necessary to prevent politically-motivated prosecutions and the criminalization of routine political courtesies. But critics of the Court’s decision – including me – argue that the result is to shield a great deal of corrupt conduct that is precisely what the law of bribery aims to prevent.

The Future of Prosecutorial Discretion

In these recent cases, when faced with the interpretation of white collar crimes such as bribery, honest services fraud, and obstruction of justice, the Court’s approach has been to interpret the statutes narrowly and consequently to remove charging discretion from federal prosecutors. A moment during the Yates oral argument is particularly illuminating. The Justices asked Assistant Solicitor General Roman Martinez what guidance prosecutors followed when deciding what kind of charges to bring, and that led to this exchange:

MR.MARTINEZ:  Your Honor, the ­. . . my understanding of the U.S. Attorney’s Manual is that the general guidance that’s given is that the prosecutor should charge ­­once the decision is made to bring a criminal prosecution, the prosecutor should charge the ­­the offense that’s the most severe under the law. That’s not a hard and fast rule, but that’s kind of the default principle.  In this case that was Section 1519.

JUSTICE SCALIA:  Well, if that’s going to be the Justice Department’s position, then we’re going to have to be much more careful about how extensive statutes are.  I mean, if you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.

MR. MARTINEZ:  Your Honor, that’s ­­. . .

JUSTICE SCALIA:  Or ­­how much coverage I give to severe statutes.

MR. MARTINEZ:  That’s ­­– that’s not what we were saying.  I think we’re not always going to prosecute every case, and obviously we’re going to exercise our discretion. . . .

As Martinez attempted to point out, the real-world exercise of prosecutorial discretion is far more nuanced than Justice Scalia suggested. It’s true that the Principles of Federal Prosecution provide as a general rule – as they have for decades – that once a decision to bring charges is made a prosecutor generally should charge “the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction.” USAM 9-27.300. But the Principles also recognize the need for prosecutors to consider the nature and circumstances of a particular case, the purpose of criminal law, and law enforcement priorities. What charges are “consistent with the nature of the defendant’s conduct” is also a matter of judgment and discretion. And of course considerable discretion also is involved earlier in the process, when deciding whether to bring charges at all.

But this exchange suggests the Court may believe it needs to interpret criminal statutes more narrowly because it cannot always trust prosecutors to exercise sound judgment when enforcing broadly-written statutes. As Justice Kennedy suggested during the Yates argument, it may be that the Court no longer thinks of prosecutorial discretion as a viable concept.

Of course, some critics of federal prosecutors will welcome this development and suggest it is long overdue. And some will point out that, for prosecutors, this may be considered a self-inflicted wound. The charging decisions in cases like Yates and Bond in particular may be what led the Justices openly to question whether prosecutors should continue to be entrusted with the same degree of discretion.

But it would be unfortunate if the Justices truly come to believe they cannot rely on prosecutors to exercise sound judgment in charging decisions. One can always argue about the merits of particular cases, but overall our system of broadly-written statutes enforced by the sound exercise of prosecutorial discretion has worked pretty well. If the Court continues to chip away at those statutes due to concerns about controlling prosecutors, it will continue to create safe harbors for some conduct that is clearly criminal.

It’s particularly inappropriate for the Court to limit these statutes based on hypotheticals that have no basis in reality, as it did in McDonnell. When we start seeing widespread prosecutions of politicians for accepting legal campaign contributions and attending Rotary Club breakfasts, then maybe we can talk about the need to curb prosecutorial discretion. But simply because we can imagine a parade of horribles based on the broad terms of a white collar statute does not mean that prosecutors are actually marching in that parade.

At the McDonnell oral argument, Justice Breyer noted that narrowing the definition of bribery might mean that a certain amount of corrupt conduct will go unpunished. Unfortunately, for now that appears to be a risk the Court is willing to take.

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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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Third Circuit Rejects Senator Menendez Speech or Debate Claims

Update 9/13/16: Today the Third Circuit denied Menendez’s request for a rehearing en banc.  He likely will now seek review by the Supreme Court.

Update 3/20/17: Today the Supreme Court declined to hear Menendez’s appeal. The case will now go back to the trial court to proceed towards trial.

The Court of Appeals has rejected Sen. Menendez's Speech or Debate claims

Senator Bob Menendez

The U.S. Court of Appeals for the Third Circuit today rejected claims by New Jersey Senator Robert Menendez that the charges against him should be dismissed based on the speech or debate clause of the Constitution. Menendez and his co-defendant, Dr. Salomon Melgen, were indicted in April 2015 on multiple counts of corruption. The 22-count indictment charges that between 2006 and 2013 Menendez accepted numerous valuable gifts from Melgen, including multiple trips on a private jet, vacations at a luxury villa in the Dominican Republic, and hundreds of thousands of dollars in contributions to various campaign and legal defense funds.  In exchange, Menendez is alleged to have intervened on Melgen’s behalf in disputes with the Executive Branch, including an enforcement action by the Centers for Medicare and Medicaid Services based on alleged massive overbilling by Melgen’s opthalmology practice and a dispute with the U.S. Customs and Border Patrol over Melgen’s multi-million dollar contract to provide cargo screening services in Dominican ports.  (For an analysis of the indictment and the charges, see my earlier post here.)

Menendez claims that various actions he took on behalf of Melgen, including meeting with Executive Branch officials to lobby on Melgen’s behalf, were “legislative acts” protected by the speech or debate clause and thus cannot be the basis of a criminal case. The trial court rejected those claims and Menendez appealed to the Third Circuit, where a three-judge panel has now unanimously rejected them as well. (For a more detailed discussion of the speech or debate clause and Menendez’s arguments, see my post here.)

The Third Circuit found that the evidence at this stage supports the government’s claim that Menendez was acting specifically on behalf of Melgen and was not, as he had argued, pursuing more general legislative or policy goals: “Record evidence and unrebutted allegations in the Indictment cause us to conclude that the District Court did not clearly err when it found that the challenged acts were informal attempts to influence the Executive Branch toward a political resolution of Dr. Melgen’s disputes and not primarily concerned with broader issues of policy.” (p. 29)  Although there was some evidence in the record supporting Menendez’s claims, the court found he had made selective use of the facts while ignoring other evidence that cut against him: “Senator Menendez’s selective reading of the materials in the record does not persuade us that the District Court clearly erred . . . .” (p. 36)

Two important points: this was merely a pretrial determination, where allegations of the indictment were presumed to be true and Menendez had the burden of proof. As the Court of Appeals recognized, after all of the evidence comes out at trial it is possible that Menendez will ultimately prevail on his speech or debate arguments (although it seems unlikely). In addition, this appeal dealt only with the speech or debate claims and a couple of collateral issues; Menendez may still raise many other legal defenses both before and during trial. In particular, it remains to be seen whether the Supreme Court’s recent decision reversing the corruption conviction of former Virginia Governor Bob McDonnell will end up helping Menendez as well.

The Third Circuit’s decision was not a surprise; the speech or debate arguments always seemed like a long shot. The claims will, however, continue to delay the ultimate resolution of the case. Menendez will now likely ask the entire Third Circuit to review the panel decision en banc, and if that fails will petition the Supreme Court to hear the case. Even if those appeals are ultimately unsuccessful, it looks like his trial likely will be delayed well into 2017. Sidebars will keep you posted.

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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.

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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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