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 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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The Impact of Justice Scalia’s Death on the Bob McDonnell Case

Justice Scalia’s death could end up spelling prison time for Bob McDonnell.

Scalia’s unexpected death over the weekend is a watershed in the legal community. Whether they agreed with him or not, few would deny that Scalia was a towering intellectual force on the Supreme Court for the past three decades. He was an aggressive and witty questioner from the bench, who almost single-handedly made Supreme Court oral arguments a lot more interesting. His elegantly-written and sometimes caustic opinions were eminently readable and could send many of us scurrying off to Google obscure terms such as “jiggery-pokery.” He had a tremendous impact on the Court and on the law.

But — this being Washington — Scalia’s body was not yet cold before people moved past the tributes and started debating the political and legal implications of his demise. President Obama and Senate Republicans promptly squared off over whether Obama should appoint a successor and whether the Senate would act on the nomination if he did.

There was also a good deal of commentary about how Scalia’s absence from the Court might affect the outcome of major cases pending in areas such as affirmative action, abortion, the Affordable Care Act, and the President’s powers on immigration and climate change. The loss of a single Justice can have a great impact because it opens up the possibility of a 4-4 tie. When that occurs, it is as though the Supreme Court case never happened. The lower court opinion stands and the Supreme Court’s decision has no value as precedent.

For former Virginia Governor Bob McDonnell, that’s a worrisome prospect. McDonnell and his wife Maureen were convicted on multiple counts of corruption back in September 2014. Prosecutors charged that the Governor and his wife agreed to use the power of his office to benefit a businessman, Jonnie Williams, by promoting his dietary supplement product within the state government. In exchange, Williams gave the McDonnells secret gifts and no-paperwork “loans” that totaled about $170,000. Following their convictions, Bob McDonnell was sentenced to two years in prison and Maureen was sentenced to one year and one day.

A panel of the U.S. Court of Appeals for the Fourth Circuit unanimously affirmed McDonnell’s conviction, and the full court declined to re-hear the case. But this past January, in a move that surprised at least some observers, the Supreme Court agreed to hear McDonnell’s appeal. The case likely will be argued in April and decided near the end of the Court’s term in June. (Maureen’s appeal in the Fourth Circuit is on hold pending the outcome of Bob’s case; the legal issues are virtually identical and whatever happens in his case will almost certainly determine the outcome of hers.)

A 4-4 Supreme Court tie in McDonnell’s case would mean the Fourth Circuit opinion upholding his convictions would stand – and that would mean the former Governor, and almost certainly his wife, would soon be heading to prison.

The McDonnell case, like all others currently pending, now faces this possibility of an equally-divided Court.  But when it comes to McDonnell, Justice Scalia was not simply one of nine Justices. If I had to pick the one Justice on the Supreme Court most likely to be sympathetic to McDonnell’s arguments, it would have been Justice Scalia. Whether in the majority or in dissent, it’s a safe bet Scalia would have had something to say about McDonnell’s case – and it’s almost certain it would have been good for McDonnell.

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Justice Scalia – A Likely Champion for Bob McDonnell

Justice Scalia was a leading voice on the Court in the area of white collar crime. He wrote the majority opinion in a number of important cases and powerful dissents in others. Consistent with his overall judicial philosophy, when it came to white collar crimes he typically argued for a strict interpretation of the statutory language and objected to any judicial “glosses” or expansive interpretations that arguably went beyond the literal words of the statute.

McDonnell’s “big picture” argument to the Supreme Court is that the government’s interpretation of federal corruption laws is too broad and potentially criminalizes a great deal of protected political activity. Justice Scalia’s overall approach to the law suggests he would have been sympathetic to this claim.

But even beyond issues of general judicial philosophy, Justice Scalia had previously staked out strong positions on the particular statutes McDonnell was convicted of violating — positions that would have directly supported McDonnell’s legal theories:

Official acts: From day one, a centerpiece of McDonnell’s legal defense has been the definition of “official acts” contained in the federal bribery and gratuities statute, 18 U.S.C. § 201. That statute defines an official act as “any decision or action on any question, matter, cause, suit, proceeding, or controversy” that may be pending or may be brought before the public official. McDonnell claims that favors he did for Williams, such as introducing him to other government officials or suggesting to state researchers that they study Williams’ product, were not “decisions” or “actions” on matters pending before McDonnell that would fall within this definition. Accordingly, he says, they cannot form the basis of a bribery conviction.

McDonnell was not charged with violating § 201, which generally applies only to federal officials. But he and his supporters have claimed that the language of § 201 governs all federal corruption laws, including those he was convicted of violating: the Hobbs Act and honest services fraud. I think this is wrong, for reasons that I’ve detailed in earlier posts here and here. But the claim remains the heart of McDonnell’s defense and is central to his Supreme Court appeal.

In support of their interpretation of the term “official act,” McDonnell and his supporters rely primarily on the Supreme Court’s 1999 decision in United States v. Sun-Diamond, which involved the appeal of Sun-Diamond’s conviction for paying gratuities to Secretary of Agriculture Mike Espy. In the course of its opinion, the Court discussed the definition of “official act” and pointed out that it was deliberately narrow. The Court noted that some routine political events, such as the President hosting a winning sports team at a White House reception, would not be “official acts” under this definition because they would not involve decisions or actions on matters pending before the President.

Sun-Diamond was not a bribery case and its discussion of “official acts” was not central to the Court’s decision.   Nevertheless, McDonnell and many other public corruption defendants routinely cite this portion of the Court’s opinion to argue that their conduct in a bribery case did not amount to official acts and thus cannot be punished.

And who was the author of the Sun-Diamond opinion? Justice Scalia. He also famously remarked in that same opinion that in an area as complex as public corruption, where there are many different statutes and regulations concerning the intersection of law and politics, “a statute . . . that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.” (He did know how to turn a phrase.)

Scalia’s view that the federal bribery statute must be narrowly construed would be directly in line with McDonnell’s position. McDonnell claims his conviction threatens all routine political interactions and that if it stands a politician could not attend a fundraiser (or host a team at the White House) without fearing a potential prosecution. He argues that fundamental First Amendment rights of political association and expression forbid this, and that the federal corruption statutes must be more narrowly tailored.

With his claim that all federal corruption laws should be interpreted by using a scalpel that would carve out a safe zone for his own actions, Governor McDonnell almost certainly would have found a sympathetic audience in Justice Scalia.

Honest Services Fraud: One of the two principal corruption statutes under which McDonnell was convicted is honest services wire fraud. In an honest services fraud case, a politician is charged with defrauding his constituents of their right to his fair and honest services by using his public office to line his own pockets.

In an important 2010 case, Skilling v. United States (involving the conviction of former Enron CEO Jeff Skilling), the Supreme Court addressed Skilling’s argument that the term “honest services” was so vague and amorphous that it rendered the statute unconstitutional. The majority disagreed. The Court held that honest services fraud should be limited to cases involving bribery or kickbacks, and that so construed the law was sufficiently clear. Because Skilling’s conduct involved neither bribery nor kickbacks, his convictions for honest services fraud were reversed.

Justice Scalia (joined by Justices Thomas and Kennedy) wrote an opinion agreeing with the final outcome but not with the analysis. Scalia agreed with Skilling that the phrase “honest services” is hopelessly unclear. He criticized the majority’s decision, arguing that narrowing the law to only bribery and kickbacks “requires not interpretation but invention.” Justice Scalia wrote that he would reverse Skilling’s convictions on the ground that the honest services law was unconstitutionally vague.

Bob McDonnell is arguing that honest services fraud requires proof of “official action” that goes beyond anything he did for Williams. But as an alternative, McDonnell claims that if honest services fraud is construed to apply to his conduct, then that law is unconstitutionally vague.

As noted above, Justice Scalia likely would have agreed with McDonnell about the need for a narrow concept of “official action” in a bribery case. But beyond that, Scalia had already written an opinion agreeing with McDonnell’s fallback argument that the honest services statute is so amorphous that it violates the constitution.

Justice Scalia was a long-standing and ardent critic of the honest services law. There’s little doubt he would have been solidly in McDonnell’s camp when it came to the challenges to McDonnell’s honest services fraud convictions.

Hobbs Act: The other corruption offense of which McDonnell was convicted was Hobbs Act extortion. As I wrote in an earlier post here, this is a somewhat unusual corruption law. The Hobbs Act applies to more traditional extortion by force or violence, but also to extortion “under color of official right.”

In the landmark 1992 case of Evans v. United States, the Supreme Court held that Hobbs Act extortion under color of official right requires only that a public official accept something of value knowing that it is being given in exchange for some exercise of official power. At common law, the Court said, extortion under color of official right “was the rough equivalent of what we would now describe as ‘taking a bribe.’”

Justice Thomas dissented in Evans – in an opinion joined by Justice Scalia. He argued that extortion and bribery are distinct crimes and that the majority’s opinion obliterated that distinction. Extortion under color of official right, he claimed, could not be committed by simply passively accepting a bribe; the public official had to induce or demand the payment under the wrongful pretense that he was entitled to it by virtue of his office.

Justice Thomas also argued that the Court’s interpretation of the Hobbs Act improperly opened up for federal prosecution a wide array of corruption crimes that traditionally had been prosecuted by the states. This federalism argument – that the federal government should not lightly assume jurisdiction over possible state and local corruption offenses – is also one of McDonnell’s claims, and is one to which Justice Scalia would have been sympathetic.

Last fall I attended the Supreme Court oral arguments in another Hobbs Act corruption case, Ocasio v. United States. Although it was not directly at issue in that case, I recall Justice Scalia, within the first few minutes, expressing his skepticism about the proposition that the Hobbs Act applies to routine state law bribery. When counsel noted that this was the holding of Evans, Scalia replied, to laughter, “I dissented, I assume.”

When it comes to the second pillar of McDonnell’s corruption convictions – Hobbs Act extortion – Scalia again was on record disagreeing with the prosecution’s legal theory. He almost certainly would have sided with McDonnell in his challenges to the Hobbs Act charges.

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Of course, there’s no way to know for certain what impact Justice Scalia’s absence will have on the final outcome in McDonnell’s case. It may be that McDonnell was going to lose anyway – it only takes four Justices to grant certiorari, but it takes five to reverse. Or it may be that he is destined to win or lose by a wider margin, where Scalia’s vote would not have tipped the balance.

But a 5-4 decision in McDonnell’s favor seemed like a real possibility. If that had happened, one of those almost certainly voting in the majority – and very possibly writing the opinion – would have been Justice Scalia. If that was destined to be the outcome, Scalia’s death means there will now be a 4-4 tie – which means the McDonnells will likely be going to prison.

The Supreme Court has lost one of its strongest, most consistent, and most articulate conservative legal voices. But the McDonnells have lost their most likely champion among the Justices. The impact on the outcome of their cases could be profound.

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Why the Supreme Court Should Not Take Bob McDonnell’s Case

Update 1/15/16: The Court announced late today that it will hear McDonnell’s case, only on the “official acts” question, not on the jury selection issue.  It will be very interesting to see what happens – watch this space!

For those following the Bob McDonnell case, all eyes were on the Supreme Court this past Monday. McDonnell’s petition for certiorari was considered at the Court’s conference last week, which led many to expect the Court to announce on Monday whether it would take the case. But the Court took no action, which suggests the Justices want additional time to consider accepting McDonnell’s appeal.

They shouldn’t do it.

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The former Virginia Governor and his wife Maureen were convicted in September 2014 on multiple counts of federal corruption. The convictions were based on their relationship with businessman Jonnie Williams, who gave them more than $170,000 in secret gifts including a Rolex watch, designer gowns, vacations and golf outings, and $120,000 in no-paperwork, no-interest “loans.” In exchange, the government charged, the McDonnells agreed to use the power of the Governor’s office to promote Williams’ dietary supplement, Anatabloc.

A unanimous panel of the Fourth Circuit Court of Appeals affirmed McDonnell’s convictions, and the full court declined to re-hear the case en banc. But in a somewhat surprising move, the Supreme Court allowed McDonnell to remain free on bond while it considers whether to hear his appeal.

In his petition to the Supreme Court, McDonnell claims his conviction is unprecedented; that this is the “first time in our history that a public official has been convicted of corruption despite never agreeing to put a thumb on the scales of any government decision. ” His conviction, he says, turns all commonplace political interactions into potential federal felonies.

McDonnell has an impressive array of allies at the Supreme Court. Nearly a dozen amicus briefs were filed on his behalf, all urging the Court to take the case. Those supporting McDonnell include various criminal law and public policy organizations, a group of current and former Virginia legislators, a group of former Virginia Attorneys General, a bipartisan group of former state and federal officials, and a number of Virginia law professors. All agree that upholding McDonnell’s conviction would place every elected official at the mercy of federal prosecutors.

(McDonnell also claims that the jury selection process in his trial was flawed, but that’s a secondary issue. Most of his argument focuses on the legal validity of his corruption convictions, as do almost all the amicus briefs.)

I’ve been a little surprised to see how many current and former public officials have claimed that McDonnell’s conviction threatens to undermine the very foundations of our political system. As an example of quid pro quo corruption the McDonnell case is really not that remarkable, and it poses no threat to ordinary political activities. The apocalyptic arguments to the contrary by McDonnell and his supporters largely rest on mischaracterizations of the law, the facts, or both.

There’s really no reason for the Supreme Court to take this case. Here’s why:

1. McDonnell did not need to perform “official acts” — Since before he was even indicted, McDonnell has argued he could be convicted of federal corruption only if he performed “official acts” as defined in the federal bribery statute, 18 U.S.C. § 201, in exchange for the gifts. Section 201(a)(3) defines “official act” 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 . . . .” McDonnell and his supporters have spent a great deal of time arguing that, whatever McDonnell did for Williams, it did not amount to “official acts” within this definition.

As I’ve argued here and here, the problem with this claim is that McDonnell was not charged with violating 18 U.S.C. § 201. He could not have been, because Section 201 applies only to federal public officials. McDonnell was convicted under two different statutes that cover bribery by state and local officials: Hobbs Act extortion under color of official right and honest services wire fraud. The statutory definitions in Section 201 simply do not apply to these other federal crimes.

In his petition to the Supreme Court, McDonnell has backed away somewhat from his earlier claims that the precise language of Section 201 controls. He even appears to criticize the trial court for adopting the 201 language – even though it was the very standard he argued for throughout his trial. McDonnell now claims that the statutes under which he was convicted require “official action,” an apparently undefined term that “draws content” from Section 201.

But as explained below, the key to any bribery case is whether there was a corrupt deal to exercise government power or influence in exchange for the bribe payments, not the precise nature of any actions actually taken. All of the arguments about whether McDonnell’s actions fit within a precise statutory definition are largely beside the point. Despite all the noise about “official acts,” there is no legal issue here concerning the proper definition of that term that would justify Supreme Court review.

2. In fact, McDonnell did not need to perform any acts at all . . . — McDonnell and his supporters claim his conviction is flawed because Williams did not actually get the university studies of Anatabloc and other benefits that he was seeking. His lawyers argue that neither Williams nor his company “received a dime of state money” as a result of the bribes. But as the government has pointed out, this is not a defense.

It’s well settled that fulfillment of the quid pro quo is not required for a bribery conviction. The public official only needs to make the corrupt deal; he does not need to follow through. If he backs out or is thwarted somehow in his efforts to fulfill his end of the bargain, the crime has still been committed. The failure of a bribery scheme does not make it lawful.

For example, suppose a public official accepts $100,000 from a developer in exchange for agreeing to use his influence to ensure the developer gets a contract to renovate a large public building. The next day, before the official has taken any steps to fulfill the agreement, the building burns to the ground, making the contract impossible. The crime of bribery has still been committed; the crime is the corrupt agreement to sell the powers of the office, even if the official never actually does anything.

The corrupt agreement, of course, does not have to be in writing or even be expressly stated. The agreement may be inferred based on the actions of the parties; otherwise, as the Supreme Court has noted, it would be far too easy to deny corruption by simply acting through “knowing winks and nods.”

Williams testified at trial and was very clear about what he expected from the McDonnells in exchange for the gifts. McDonnell also testified and denied any such agreement or understanding, of course, but that simply set up a classic witness credibility issue. Who to believe in such a case is a fact-bound, jury determination – not a legal question for the Supreme Court to resolve.

It was more than reasonable for the jury to accept the government’s argument that McDonnell knew that Williams – a man he didn’t even know before he ran for office – was not simply showering him with gifts out of kindness or admiration. McDonnell knew what Williams wanted in return, and the jury found he accepted the gifts with that understanding. That’s all the law requires.

3.  . . .  but in any event, McDonnell DID use the power of his office in an attempt to benefit Williams – The evidence at trial showed that the McDonnells did in fact do a number of things for Williams in exchange for his largesse. The governor asked certain officials to meet with Williams to discuss his product and plans. He suggested to state officials that Virginia universities might do research studies of Anatabloc and that perhaps it should be promoted by the Virginia state employees health plan. Perhaps most significantly, the McDonnells held a “product launch” event for Anatabloc at the Governor’s mansion, which was planned by state employees and attended by the university researchers who would decide whether to undertake the studies that Williams desired.

McDonnell and his supporters have consistently argued that these were routine political courtesies, not weighty or significant enough to be “official acts,” “official action,” or otherwise to support a bribery conviction. But these arguments largely miss the point because, as noted above, the government was not required to prove that McDonnell took any action at all, only that he entered into the corrupt agreement with Williams.

Again, the key to bribery is the existence of a corrupt agreement, not the precise nature of anything subsequently done by the public official. McDonnell’s actions were not the sine qua non for determining whether bribery took place.  They did, however, provide evidence that the corrupt agreement existed and that McDonnell was taking steps to carry it out. That was more than sufficient to support the jury’s verdict.

Suppose one of the university researchers had followed through on McDonnell’s suggestion and initiated the research study that Williams wanted. The defense then would be hard pressed to argue that Williams had received no benefit or that McDonnell had not “placed his finger on the scale” of a government decision. Yet the actions actually taken by McDonnell himself would have been exactly the same.

The evidence at trial suggested the main reason McDonnell’s efforts on Williams’ behalf did not succeed was that the governor’s staff did not follow through on his requests, in part because they did not trust Williams or believe in his product. It is not a defense for the governor that his subordinates had the good sense to resist his efforts to fulfill his end of his corrupt bargain.

4. McDonnell’s conduct was not legal under Virginia law — McDonnell and his supporters have claimed his prosecution is unjustified and presents federalism issues because what he did was perfectly legal under Virginia law. They note that Virginia’s notoriously lax ethics laws allowed politicians to accept undisclosed gifts. It’s not appropriate, they argue, for the federal government to prosecute a state official for conduct that would be legal under state law.

To bolster this argument, McDonnell and his supporters seize on a line from the trial judge’s jury instructions: “there has been no suggestion in this case that Mr. McDonnell violated Virginia law.” But the unremarkable statement that Virginia law is not an issue in the federal case and that the jury should not consider it is not the same as an affirmative finding that McDonnell did not violate Virginia law. On the contrary; based on the jury’s verdict it is clear that he did.

Virginia state law defines bribery as a public official agreeing to accept a pecuniary benefit 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 broad application to “recommendations” and “exercises of discretion” certainly covers much of McDonnell’s conduct on behalf of Williams.

It’s true that Virginia law did allow public officials to accept undisclosed gifts, but it did not allow them to do so as part of an agreement to exercise their official powers in exchange. That is quid pro quo bribery prohibited by every state. McDonnell could have legally accepted Williams’ gifts if there were no strings attached — but that’s not what the jury found happened in this case.

5. McDonnell’s conviction poses no threat to ordinary political interactions — The scariest bogeyman raised by McDonnell and his supporters (many of them politicians, of course) is that his conviction criminalizes routine political actions and relationships. They claim that if McDonnell’s conviction stands, no politician could answer a phone call from a supporter or arrange a meeting with staff for a donor without fear of prosecution.

This claim that McDonnell’s conviction criminalizes “politics as usual” again misapprehends the nature of his case. With our system of privately financed campaigns, politicians do need to raise money, and they will inevitably take actions favored by their supporters. Similarly, individuals have a right to support politicians financially and to express their views to them about policies and actions they would like those politicians to pursue.

What politicians and their supporters cannot do, however, is enter into agreements where the politician agrees to take a particular action in direct exchange for a particular gift or contribution. That is the quid pro quo that defines the line between routine political interactions and corruption.

The distinction between taking actions generally favored by one’s political supporters and acting pursuant to a direct quid pro quo agreement may seem like a fine line, and at times it is. But that is the stuff of which political corruption cases are made. Politicians in a corruption case routinely claim there was no quid pro quo; the ongoing case involving New Jersey Senator Bob Menendez involves the same defense. Whether the corrupt agreement existed is a jury question that will turn on the facts of the particular case.

When trying to determine whether a particular relationship is corrupt or simply politics as usual, the entire relationship needs to be examined. McDonnell and his supporters have consistently tried to cloud this issue by referring to Williams as a “supporter” or a “donor.” They suggest McDonnell’s conviction means any politician may be prosecuted for any favor done for someone who attended a fundraiser or contributed to their campaign.

But Williams was not just a “donor” or “supporter.” The gifts from Williams were not campaign or PAC contributions – they were secret gifts and undocumented loans. Individual campaign contributions, which take place within a legal and regulated system, have almost a presumption of legitimacy. They are subject to legal limits and are publicly disclosed, so all may see who is supporting a particular politician and where he or she may have potential conflicts of interest. And the funds are used for documented political purposes, not to line the candidate’s own pockets.

Gifts of Rolex watches, designer gowns, payment for wedding caterers, and sweetheart “loans” take place outside of this system. The gifts from Williams were secret, and both sides wanted it kept that way. There was no way for the public to know about Williams’ support of McDonnell, and no legal limits to that support. Gifts like these, unlike routine campaign contributions, are indicative of potential corruption. Referring to Williams as simply a “donor” or “supporter” obscures this critical distinction and the corrupt nature of his interactions with the McDonnells.

Although it’s true that a bribery case may be based on campaign contributions, it is very rare. Any such case would be scrutinized extremely closely to ensure that routine political support is not being criminalized and that the jury did not infer a quid pro quo simply because a politician took action that benefited a supporter. If that scrutiny revealed there was in fact an express quid pro quo in exchange for a campaign contribution, that would still be bribery – but that is not new, and was not something created by the McDonnell case.

Secret gifts enter the equation on a far different footing from legitimate campaign contributions. In other words, contrary to McDonnell’s claims, all quids are not created equal when evaluating whether a corrupt relationship existed. Extrapolating from McDonnell’s conviction to argue that all routine political interactions are now at risk is simply politicians claiming that the sky is falling.

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McDonnell’s conviction breaks no new ground and raises no novel questions of federal law. It’s a case of simple quid pro quo corruption, where the jury heard both sides and reached a unanimous verdict that no federal judge has seen any reason to disturb. Despite the parade of horribles presented by McDonnell and his supporters, there is no reason for the Supreme Court to get involved.

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Bob and Maureen McDonnell: Running Out of Legal Options

Update 8/31/15:  The Supreme Court today granted McDonnell’s request to remain free on bond while the Court considers his petition for certiorari.  I think this is surprising, and has to be considered a very good sign for McDonell.  It suggests there is some level of interest at the high court in reviewing the case, even though not a single judge so far in the lower courts has agreed with McDonnell’s arguments.  Stay tuned.

The former Governor and First Lady of Virginia are rapidly running out of both time and options to avoid going to prison.

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Bob McDonnell and his wife Maureen were convicted last September on multiple counts of corruption.  The jury found that they conspired together over a two-year period to use the powers of the Governor’s office to help a businessman, Jonnie Williams, who was trying to promote his dietary supplement Anatabloc within the state government.  In exchange, Williams gave the McDonnells $120,000 in interest-free, no-paperwork “loans,” along with gifts including a Rolex watch, designer dresses, golf outings and luxury vacations, and payment of the catering bill for their daughter’s wedding.  Following their convictions, Bob McDonnell was sentenced to two years in prison and Maureen was sentenced to one year and one day.

Although the McDonnells were tried together, their appeals have proceeded on separate tracks.  Maureen’s appeal to the U.S. Court of Appeals for the Fourth Circuit has not even been argued yet, and is currently scheduled for a hearing on October 29.  Bob’s appeal was argued last May, and a three-judge panel of the Fourth Circuit unanimously affirmed his conviction on July 10.

The former Governor asked the Fourth Circuit for a rehearing by the same judges or for an en banc rehearing by the entire court.  The court denied both requests on August 11, with not a single judge voting to re-hear McDonnell’s case.

McDonnell has been free on bond during his appeal, but the Fourth Circuit has now rejected his request to remain in that status while he petitions the U.S. Supreme Court to hear his case.  The Fourth Circuit ruled that the mandate  — the order from the trial judge enforcing the verdict and sentence – will issue this Thursday, August 27.  Once the mandate issues, the U.S. Bureau of Prisons will designate a facility where McDonnell will serve his sentence and he will be given a date to report to prison.  This could happen in a matter of only a few weeks.

McDonnell’s lawyers have filed a last-ditch appeal with the U.S. Supreme Court, asking that he remain free while he files a petition for certiorari asking the Court to review the Fourth Circuit’s decision.  To succeed, they have to persuade the Supreme Court that there is a reasonable likelihood not only that four Justices will vote to take the case but also that McDonnell will ultimately prevail.  That’s a real uphill battle.

McDonnell’s principal argument on appeal is that his conviction represents a dangerous and unprecedented expansion of federal corruption law because he did not perform any “official acts” in exchange for the gifts that he unquestionably received from Williams.  But McDonnell’s lawyers have been making that same argument since before he was indicted, and so far not a single judge (not to mention a single juror) has agreed.

When all prior judges to consider an argument have unanimously rejected it, it’s pretty hard to see five Justices of the Supreme Court buying in.  When you couple that with the fact that the Supreme Court agrees to review fewer than 1% of the petitions it receives, it looks pretty unlikely that the Court will disturb the Fourth Circuit’s decision that McDonnell should begin serving his sentence.

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Bob McDonnell’s Arguments on Appeal

Bob McDonnell made a number of arguments in his appeal to the Fourth Circuit, including that the judge did not adequately question potential jurors, that he and Maureen should have been tried separately, and that the judge made a number of errors when ruling on evidence during the trial.  (You can find my detailed discussion of these appellate issues here.)  As I expected, none of these gained much traction in the Court of Appeals.  The only substantial issue – which the Fourth Circuit referred to as “the core of this appeal” — was McDonnell’s claim that he could not be convicted of corruption because he never performed any “official acts” within the meaning of federal corruption laws.

McDonnell had an extraordinary amount of support, including briefs filed by politicians from across the county and a number of former Virginia Attorneys General arguing that his conviction was unwarranted and could spell the end of politics as we know it.  But the Court of Appeals had no trouble finding that McDonnell had acted corruptly and that these claims were overblown.

The Court of Appeals noted that both sides in the case, as well as the district court judge, had proceeded on the theory that the relevant definition of “official acts” is the one found in the federal bribery statute, 18 U.S.C. § 201 – a statute that was not part of McDonnell’s case. As I’ve argued elsewhere, this is a dubious proposition — but since all sides agreed the Fourth Circuit chose to accept it, at least for the purposes of McDonnell’s appeal.

Even using this defense-friendly definition, the court had no trouble finding that McDonnell had agreed to engage in a number of official acts in exchange for the gifts from Williams. These included acting on questions concerning whether Virginia universities would fund research studies of Anatabloc, whether a state-created tobacco commission would allocate grant money to study it, and whether Anatabloc would become a covered drug under the health plan for Virginia employees.

These were all matters over which McDonnell, as the state’s chief executive, had substantial influence. The court concluded that the evidence at trial demonstrated he had taken steps to try to influence those matters for Williams’ benefit. As the court noted, it was not necessary for the government to prove that McDonnell actually succeeded, or that Williams actually received a state grant or a research study. Corruption is established by the deal, where the public official agrees to exercise influence in exchange for things of value. It doesn’t matter if the official ultimately succeeds or even if he actually has the power to do what he promised, so long as he makes a corrupt bargain to sell the power and influence of his office.

The court concluded that the evidence showed McDonnell did not merely agree but actually took some concrete steps to try to fulfill his end of the deal. Those steps included directing staff to meet with Williams and to look into conducting the Anatabloc research studies, and holding a “product launch” event for Anatabloc at the Governor’s mansion.

In the end, the Court of Appeals unanimously concluded that, despite the protestations of McDonnell and his allies, this case was really not all that remarkable. In exchange for a string of gifts, McDonnell used the power and prestige of his office to try to further Williams’ business interests. The only thing unusual about the case was that, in the end, Williams did not in fact get much in exchange for his efforts – but as the government has pointed out, that McDonnell was not successful in fulfilling his end of the bargain does not change the fact that the bargain itself was corrupt. As a legal matter, McDonnell does not benefit simply because his efforts to help Williams were ultimately unsuccessful.

Maureen McDonnell’s Arguments on Appeal

Maureen McDonnell’s lawyers are in an unenviable position. The Court of Appeals has already rejected all of Bob’s arguments, and her arguments are virtually the same.  Her lawyers have acknowledged, as they must, that there is “substantial overlap” between the issues in her appeal and the issues already decided in the government’s favor in her husband’s case.

So in preparing for the October 29 argument, Maureen’s lawyers are left trying to find some way to convince the Court that her case and her legal issues are actually different. This is basically like trying to find a good-looking deck chair on the Titanic.

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Maureen’s primary argument is that she is not a public official, and so she should be held to a more lenient standard. Her lawyers claim that as a “high-school educated spouse of a politician,” she could not possibly have known it was improper for her and the Governor to try to help Williams in exchange for all of his largesse.

I think this argument is extremely unlikely to fly. Maureen was charged with conspiring with her husband to sell his influence as a public official, so there was no requirement that she be a public official herself. It is common for those who are not public officials to be charged with corruption, either through a conspiracy charge as in this case or because they are the ones paying the bribes.

As for her state of mind, prosecutors did not need to show that Maureen was some kind of legal expert thoroughly familiar with the ins and outs of federal bribery law and the nuances of the “official act” definition. They only needed to show that she agreed to act corruptly, meaning that she agreed with Bob to exercise the powers of his office in exchange for Williams’ gifts. There was ample evidence of this during the trial.

The other problem with this defense is that there was evidence at trial demonstrating that Maureen knew the relationship with Williams was improper. The most significant was testimony concerning how she sold her stock in Williams’ company just before she had to file a government financial disclosure report, only to buy it right back after the report was filed. She also attempted to transfer ownership of that stock to her children, so it would not be reported and would remain concealed from the public.

There also was evidence that Maureen was told by the Governor’s staff that she could not allow Williams to buy her inaugural gown, as he had offered to do. (He later made up for it, though, by taking her on a shopping spree in New York and buying her several designer dresses.) In short, the suggestion that Maureen was blissfully unaware that there might be anything at all improper about the relationship with Williams simply does not withstand scrutiny.

Finally, questions about a defendant’s state of mind and intent are classic jury questions. These factual issues were fully argued at trial and the jury unanimously found against her. There is no real legal basis here for an appellate court to disturb that finding.

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I think it’s extremely unlikely that Maureen will succeed on appeal where Bob did not, and also unlikely that the Supreme Court will allow Bob to remain on bond or agree to review the Fourth Circuit’s decision. That means Virginia’s former Governor will probably be behind bars before the end of the year, with his wife following shortly thereafter.

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The Key Issues in Bob McDonnell’s Appeal

Update:  On August 11, the Fourth Circuit denied McDonnell’s motion for rehearing and rehearing en banc.  McDonnell will now seek review by the U.S. Supreme Court.

Update:  On July 10, the three-judge panel of the Fourth Circuit unanimously affirmed McDonnell’s convictions.  He is now seeking en banc review by the entire court.  The panel opinion is here

Former Virginia Governor Bob McDonnell’s appeal will be argued tomorrow, May 12, before the U.S. Court of Appeals for the Fourth Circuit in Richmond, VA. McDonnell and his wife Maureen were convicted of multiple counts of corruption for accepting a series of extravagant gifts and sweetheart loans from businessman Jonnie Williams in exchange for using the power of the Governor’s office to promote Williams’ product, Anatabloc.

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The key legal issues in the appeal can be broken down into four categories:

1) Were the things McDonnell did in exchange for the gifts from Williams “official acts” for purposes of federal bribery law?

2) Did the trial judge err by refusing the McDonnells’ request that they be tried separately?

3) Did the trial judge err during jury selection by not probing more thoroughly whether pre-trial publicity had prejudiced any of the potential jurors against the McDonnells?

4) Did the trial judge err in several evidentiary rulings against the defendants?

McDonnell has an impressive array of supporters before the Fourth Circuit. Nearly a dozen amicus briefs were filed on his behalf by groups including the National Association of Criminal Defense Lawyers; six former Virginia Attorneys General; forty-four non-Virginia state Attorneys General; several Virginia law professors; and members of the Virginia General Assembly. To one degree or another, most of these supporters claim that political life in Virginia – if not American democracy itself – will be irreparably harmed if McDonnell’s conviction is not overturned.

I believe these concerns are misplaced. As an example of quid pro quo corruption, the McDonnell case is really not that remarkable. In fact, the most remarkable thing about it is that the central legal argument throughout the case has been about the language of a statute that is not even part of the indictment. How the Fourth Circuit deals with that issue in particular may end up being the key to McDonnell’s fate.

The Definition of “Official Acts” – A Focus On the Wrong Question

By far the most significant issue on appeal, and the one likely to consume most of the court’s attention, is the first: the question of “official acts.” Since before the case was even indicted, the backbone of McDonnell’s defense has been that whatever he may have done for Williams in exchange for the gifts, his actions were merely political courtesies and did not violate federal bribery law because they were not “official acts.” Arguments about this point consume the bulk of the briefs on both sides, as well as most of the amicus briefs.

The term “official acts” comes from the federal bribery statute,18 U.S.C. § 201, which defines it as “any decision or action on any question, matter, cause, suit, proceeding, or controversy” brought before a public official in their official capacity. 18 U.S.C. § 201(a)(3).  Section 201, however, applies only to federal public officials and was not part of the McDonnell indictment. The corruption charges they were convicted of fall under two other federal statutes: honest services fraud and Hobbs Act extortion under color of official right. Both of these statutes operate as bribery by another name and provide a vehicle for federal prosecution of state, local, and even private sector bribery.

As I have argued in an earlier post, however, bribery for purposes of honest services fraud and the Hobbs Act is not limited to the definition contained in 18 U.S.C. § 201. Those statutes apply more broadly to general common law bribery, not to a specific statutory definition. Indeed, not a single case cited in any of the appellate briefs stands for the proposition that bribery under honest services fraud or the Hobbs Act is defined by the language of 18 U.S.C. § 201.

Nevertheless, throughout this case, both sides have taken the position that the government is required to prove McDonnell performed “official acts” as defined in Section 201. It’s not completely clear how the case arrived at this posture, but it is clear that the emphasis on this particular language favors the defense. Had the parties and the court focused on a more generic definition of bribery, the case would have looked quite different.

For example, Virginia state law and the Model Penal Code both define bribery as a public official accepting a pecuniary benefit 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). There is no requirement of an “official act” as defined in Section 201, and the broad application to “recommendations” and “exercises of discretion” certainly seems to cover much of McDonnell’s conduct.

There are scattered references throughout the appellate briefs and amicus briefs to the idea that the definition of bribery in Section 201 may not in fact be the correct standard, with the defense continuing to insist that it is.  In the end, though, for the most part everyone proceeds on the assumption that the language of Section 201 applies, as the parties did during the trial. As a result, much of the legal argument is devoted to whether McDonnell’s conduct amounted to a “decision” or an “action” “on” a “matter, cause, suit, proceeding, or controversy” within the meaning of Section 201’s definition. Rarely has so much appellate ink been spilled over the language of a statute that no defendant in the case was charged with violating.

The Effect of the Focus on “Official Acts”

This obsession with the nature of McDonnell’s actions has caused the real issue to be obscured. In a bribery case the focus is less on the nature of the act itself and more on the corrupt deal: the agreement of the public official to be influenced in the exercise of his or her official powers in exchange for the bribe. In fact, although you’d never know it from the pleadings in this case, even federal bribery under Section 201 does not require an “official act” – that is only one of three alternative ways to violate the statute. The definition of “official act” is actually much more important to the lesser crime of gratuities (also in Section 201) than it is to bribery, and indeed many of the main cases relied upon by McDonnell are gratuities cases, not bribery cases. The implication of many of the arguments that federal bribery law always requires “official acts” is simply incorrect.  What bribery does always require is the element of influence.

Bribery is considered corruption because it alters the behavior of a public official, who acts not for the good of all as he or she is sworn to do but in response to an improper benefit received from a particular individual. This corrupt exchange in a bribery case is often referred to as the quid pro quo. In McDonnell’s case, the excessive focus only on the “quo” – McDonnell’s actions — is what leads to the fears expressed by the defense and many of the amicus briefs about the implications of McDonnell’s conviction. They argue that if the types of things McDonnell did for Williams are criminalized, it will “wreak havoc” on the political life of Virginia, “criminalize wide swaths of political life,” and make “virtually every elected official in the Fourth Circuit a criminal.”

What these arguments fail to grasp is that it is not the nature of McDonnell’s actions that’s the problem: it’s the corrupt deal that led to them. Routine political acts and favors done for supporters are generally not bribery not because they are not “official acts,” but because they are not done as part of a corrupt quid pro quo.  Law abiding politicians who are simply serving their constituents and not making corrupt deals have nothing to fear from McDonnell’s conviction.

The defense and various amici further obscure this point by noting that it’s possible for a campaign contribution to be a bribe. As a result, they claim, if the McDonnell conviction is upheld then any politician who takes any kind of routine action for someone who has donated to their campaign would risk being branded a felon.

Again, the flaw in this argument is that it focuses on only one side of the equation – in this case, the quid – instead of focusing on the corrupt agreement itself. Legal campaign contributions generally do not support criminal charges simply because they are not considered part of a corrupt bargain. For better or worse we have a system of privately financed campaigns in this country, where it is legal and appropriate for supporters to contribute to politicians in the hope that they will act in certain ways and for politicians to respond to the concerns of their lawful supporters. Properly reported campaign contributions within legal limits, without more, are not corrupt.

Gifts like those in the McDonnell case are another matter. Secret sweetheart loans, payments for a daughter’s wedding, expensive golf outings, Rolex watches, and steps taken to hide all of the above from the public – these are all things that, unlike legal campaign contributions, have the whiff of corruption about them. Contrary to the defense’s implication, not all quids are created equal.

A campaign contribution can be a bribe – in rare cases – but the other indicia of corruption must be much greater, including an explicit agreement by the politician to take a particular action in direct exchange for the contribution.  The point is that in a bribery case it is the overall corrupt deal and the question of influence that has to be examined, not just the quid, and not just the quo.

The focus on “official acts” has been largely a diversionary tactic that allows the defense to deflect attention away from the corrupt deal that the jury, by its verdict, necessarily found existed between Williams and the McDonnells. But the logical implication of the defense argument is that a businessman could secretly give the Governor tens of millions of dollars in exchange for an agreement to host an event at the Governor’s mansion and that deal would not be illegal because it did not involve an “official act.” That is definitely not the law – not even in Virginia. The powers and resources of the Governor’s office are not up for sale to the highest bidder.

The real issue is not whether the actions McDonnell took to help Williams met some precise statutory definition. The crux of the case is that he exercised his discretion and the powers of his office to benefit Williams in exchange for a two-year pattern of secret gifts and loans. That is classic quid pro quo corruption. The interesting question on appeal will be whether the Fourth Circuit focuses on that fact or gets sidetracked into debates about the meaning of a statute that is not even part of the case.

The Other Three Issues: Not Likely to Be a Major Factor

Voir Dire:  The defense also is challenging the process by which the jury was selected, known as voir dire. Their claim is that the judge failed to probe sufficiently whether negative pretrial publicity about the case might have prejudiced potential jurors against the McDonnells.

The process of jury selection is firmly committed to the discretion of the trial judge and it’s very rare for cases to be overturned on this basis. Appellate courts recognize that, particularly when it comes to pre-trial publicity, the trial judge is in the best position to evaluate what the nature of that publicity has been and how best to deal with it, because the judge also lives in the same community. The judge is also in the best position to judge the demeanor and credibility of the potential jurors standing in the courtroom and responding to questions about their ability to be fair and impartial.

Another important factor is that the jury acquitted the McDonnells on several counts of the indictment. This suggests a jury that did its job and considered each charge individually on its merits, not one that was biased and predisposed to convict regardless of the evidence.

Although there was a lot of pretrail publicity, this is not a gruesome murder, racially-charged case, or other case where there might be heightened concern about the passions of the community being inflamed. It’s possible this could be a sleeper issue, with some of the appellate judges concerned that the voir dire was a bit too perfunctory. In the end, though, I doubt this argument will gain much traction in the Court of Appeals.

Severance: McDonnell also argues that it was error for the trial judge to refuse to try the Governor and his wife separately. He claims that if had been tried alone his wife would have testified at his trial and provided helpful evidence.

There is a presumption that co-defendants will be tried together, particularly in a conspiracy case, and severance is rarely granted. It may be true that Mrs. McDonnell’s testimony would have been useful to the Governor, but that’s not the standard. Separate trials are only required if the failure to sever the defendants would deprive the defendant of a fair trial and result in a miscarriage of justice.

As the government has pointed out, much of the proffered testimony from Mrs. McDonnell ended up being presented to the jury through other witnesses. Although she may have denied that the Governor knew about some of the gifts, she could not deny that he knew about many of the others, including the expensive golf outings and the loans from Williams that he personally requested. Much of her testimony would have been vigorously challenged and impeached by the government. And of course her effectiveness as a witness would have been limited by her obvious bias and motivation to exonerate both her husband and herself. The appellate court is extremely unlikely to second-guess the trial judge’s refusal to sever the trials.

Evidentiary Rulings:  Finally, the defense argues that the judge erred in a number of the evidentiary rulings throughout the case. These include the judge’s refusal to allow defense expert testimony about Virginia’s financial disclosure forms and to admit evidence about McDonnell’s completion of those forms; the decision to admit evidence suggesting that the Governor was actively looking for places where he could play golf for free; the decision to allow evidence about another $23,000 golf vacation paid for by another supporter of McDonnell’s that the Governor failed to report; the refusal to allow additional evidence and defense expert testimony about the immunity agreement granted to Jonnie Williams; and the failure to allow the defense access to the contents of William’s iPhone.

A judge is called upon to make dozens, if not hundreds, of such rulings during a lengthy trial like this one, and those rulings will not be disturbed unless the judge abuses his or her discretion. The government argues that each of these rulings was correct. Even if any of them was an error, however, it’s extremely unlikely that the error would be significant enough to justify a new trial.

The Bottom Line

The “official acts” question has been the central issue throughout this case and will likely determine the outcome of the appeal.  A good result would be for the Fourth Circuit to write an opinion recognizing that, even though the government was not required to prove the exact elements of Section 201, the evidence at trial was more than sufficient to establish common law, quid pro quo bribery.  McDonnell’s best hope is that the Court of Appeals gets bogged down in all the debate about “official acts” and loses sight of what the case is really about: a corrupt arrangement where he and his wife put the powers of the Governor’s office up for sale.

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Oregon’s First Lady Cylvia Hayes and the Law of Honest Services Fraud

The U.S. Attorney in Oregon is conducting a grand jury investigation of former Governor John Kitzhaber and his fiancé and honorary first lady, Cylvia Hayes. Hayes runs a company that focuses on clean energy and economic development issues. The investigation is focused on allegations that Hayes may have traded on her position as first lady to obtain lucrative contracts from various clean energy groups and then worked with Kitzhaber to further the interests of those groups within the state government. Kitzhaber resigned in February, on the same day that news of the federal grand jury investigation was announced.

Acceptance speech for Oregon's new Governor, John Kitzhaber

The investigation, and questions about Hayes’ role in particular, bring to mind the recently concluded corruption case involving former Virginia Governor Bob McDonnell and first lady Maureen McDonnell. The McDonnells were found guilty of accepting gifts and sweetheart loan deals from businessman Jonnie Williams in exchange for agreeing to promote his products within the state government. And as with the Oregon case, in Virginia many painted the first lady as the principal bad actor in the scheme.

A key charge in the McDonnell case was honest services fraud, a theory commonly used to prosecute bribery. The McDonnells were convicted of acting together to deprive the citizens of Virginia of their right to Bob McDonnell’s honest services by accepting bribes from Williams.

As Governor, there’s no question that McDonnell did owe a duty of honest services to the people of his state. But there was no allegation in the McDonnell indictment that the first lady, Maureen McDonnell, owed her own duty of honest services to Virginians. As far as I’m aware, throughout that case all parties took the position that Maureen McDonnell was not a public official and that her criminal liability was entirely derivative of her husband’s, based on the duty of honest services that only he owed and that she helped him violate. The implication was that if Bob were not involved, Maureen could not have been charged.

That theory worked fine for the Virginia case. The government’s argument was that the McDonnells did conspire together in the bribery scheme, so there was probably no need to consider whether there would be an independent basis for charges against the first lady alone. But now, looking at the facts in the Oregon investigation, that question is worth considering.

Suppose the Oregon investigation revealed that Hayes had secretly agreed to accept money from outside organizations in exchange for personally working within the Oregon government to further their interests – but Kitzhaber knew nothing about it and was not involved in any such deal. Would there be a basis on which to charge Hayes alone with honest services fraud?

I think the answer is yes. Before moving on, though, let me stress that this is a purely hypothetical legal analysis. We don’t know what the grand jury investigation will reveal and I’m in no way suggesting that I think any of the charges discussed below would be appropriate as a factual matter. I’m only interested in whether they would be legally sound.

The Law of Honest Services Fraud 

Honest services fraud is a popular — and controversial — white collar crime. The federal mail and wire fraud statutes prohibit using the mail or any telephone or wireless transmission in furtherance of a “scheme or artifice to defraud.” In a traditional fraud case, such as a Ponzi scheme, the object of the scheme to defraud is to deprive the victims of their money or property. But for decades, federal prosecutors also have utilized another theory of mail and wire fraud, charging defendants with schemes to defraud victims of their intangible right to the fair and honest services of a particular individual.

In an honest services fraud case there is no need to show that the victims suffered any monetary loss. The injury is simply the breach of a duty of honest services. That duty requires people in certain kinds of relationships to act with with honesty and loyalty, free from corruption, deception, and self-interest. A prerequisite for any honest services fraud case, therefore, is a finding that a duty of honest services existed in the relationship in question.

The most common type of honest services fraud case involves political corruption. Public officials are universally considered to owe a duty of honest services to their constituents and the public to exercise the powers of their office honestly and for the benefit of all, and not to use their position to line their own pockets or otherwise engage in corrupt behavior. Honest services fraud is a mainstay charge in cases involving local, state, and federal public corruption.

But the theory is not limited to public officials. Courts have also found a duty of honest services in various private sector relationships that involve fiduciary duties or other special obligations of good faith, honesty and trust. The most common private sector theory has been based on the duty that an employee owes to his or her employer to act in that employer’s best interests. For example, if an employee secretly took bribes from a contractor to steer business to that contractor, the employee could be charged with violating his duty of honest services to his employer. Other private sector relationships that involve a similar relationship of trust and loyalty may also give rise to honest services charges.

Because of its potential breadth and uncertain parameters, the doctrine of honest services fraud has had a tumultuous history. In 1987 the Supreme Court struck down the theory as too vague and amorphous, only to have Congress reinstate it by statute the following year. Finally, in 2010 the Supreme Court ruled in Skilling v. United States that only the core corrupt conduct of bribery and kickbacks amounts to honest services fraud. The Court made it clear, though, that the theory still applies to both the public and private sector (see footnote 45, for example); in fact, Skilling itself was a private sector case involving former Enron executive Jeff Skilling.

Hood_River_OR_-_aerial

 Hayes’ Duty of Honest Services to the People of Oregon

There’s no question that Kitzhaber, as the elected governor, owed a duty of honest services to the people of Oregon, just as Bob McDonnell did to the people of Virginia. If Kitzhaber were found to have engaged in bribery or kickbacks, he could be prosecuted on an honest services fraud theory.

Similarly, if Hayes were conspiring with Kitzhaber in a bribery or kickback scheme, she could be liable for taking part in the scheme to deprive the public of Kitzhaber’s honest services. In that case, her liability would depend on Kitzhaber’s duty. This is the theory under which Maureen McDonnell was prosecuted along with her husband.

But what if Kitzhaber was not involved? Then the question would be whether Hayes owed her own duty of honest services to the people of Oregon.

There is no uniform definition of who qualifies as a state or local “public official” for purposes of honest services fraud. Those who are elected to office or are employed and paid by the government certainly qualify. But the definition likely is not limited to those who are on the government payroll.

If we look to the federal bribery statute for guidance, “public official” is defined to include not only federal government employees and elected officials but also any individual acting “for or on behalf of the United States.” 18 U.S.C. § 201(a)(1). The Supreme Court has held that this encompasses anyone exercising a position of public trust with official federal responsibilities. For example, a private contractor responsible for awarding federal housing grants or a guard at a private correctional facility that contracts to house federal prisoners may be considered a public official under the bribery statute due to the nature of their responsibilities. The same principle should apply at the state level.

The facts suggest that Ms. Hayes should be considered a public official, as one who acted for and on behalf of the state of Oregon. When he was first elected in 2011, Kitzhaber announced that Hayes would serve not only in the role of first lady but also as an advisor to the governor on clean energy and development issues. By all accounts, Hayes played a significant policy role in Kitzhaber’s administration.

The Oregonian newspaper has been reviewing some 94,000 of Hayes’ e-mails that were recently released as part of a public records request. They reveal that Hayes was an active participant in the administration, attending top-level meetings, directing the activities of aides, making use of the governor’s staff, and participating in various state government programs and initiatives. She traveled on state business, and at state expense, to various events where she appeared in an official capacity as first lady.

Significantly, the Oregon Attorney General herself recently determined that Hayes was a public official for purposes of the state’s public records law. That ruling came when the Oregonian requested copies of Hayes’ aforementioned e-mails. Hayes and Kitzhaber resisted that request, arguing that she was a private citizen not covered by the law. The Attorney General disagreed, finding Hayes had “extensive, high-level involvement in the executive branch,” and that she had “a significant amount of authority over government employees.”

Hayes and Kitzhaber themselves have taken somewhat conflicting positions on the question of Hayes’ status. Last summer the governor’s counsel announced that they considered Hayes to be a public official for purposes of the state’s ethics rules, and Hayes apparently has in the past filed financial disclosure paperwork that is required of state officials. On the other hand, when resisting the order to turn over her e-mails and the power of the state ethics commission to investigate her, Hayes and the governor claimed she was a private citizen, not a public official. More recently, though, she argued (unsuccessfully) that the state should pay her attorney’s fees, citing the Attorney General’s finding that she is a public official.

Putting all these facts together, there’s a compelling argument that Hayes should be considered a state public official for purposes of honest services law. She certainly was acting “for or on behalf of” the state in a number of ways. And the finding of the state’s own highest legal official, while not binding for purposes of interpreting a federal law, is certainly entitled to some deference.

This is not to say the same would necessarily be true for every first lady in every case. As my students are tired of hearing me say, everything depends on your facts. It’s possible that a first lady who played a much less active policy role in the administration and performed only ceremonial functions would not be considered a public official. But Hayes, who was so involved that the Oregonian has dubbed her a “deputy governor,” seems to qualify.

But in the end, I don’t think it really matters whether or not Hayes is formally deemed to be a public official. As noted above, honest services fraud can also apply to private sector individuals. The key is the presence of a duty of special trust and confidence that arises from the nature of the relationship between the parties.

All of the same factors described above suggest that Hayes had a duty of honest services to the people of Oregon, even if she is considered a private citizen. Hayes was acting on behalf of the state, speaking in the name of the state, directing the activities of state employees, and working on policy initiatives within the state government. The taxpayers were not paying her a salary, but were supporting her in a number of ways including providing travel, security, staff, and living quarters. It would be strange indeed if the law held that someone who plays such a role within the government assumes no duty to the public to act with honesty and loyalty and free from corruption.

oregon flag

I believe a court would conclude that Cylvia Hayes owed a duty of honest services to the people of Oregon while she was acting as first lady. As a result, if the investigation revealed that she received bribes in connection with her state work, there would be a basis for honest services fraud charges regardless of whether Governor Kitzhaber was involved. This would require evidence of a corrupt deal, or quid pro quo, where Hayes agreed to take particular actions in exchange for contracts or other things of value.  A mere conflict of interest, or appearance of one, would not be enough.

Again, I have no idea whether Hayes committed any crimes and am not suggesting that she did. But anyone who believes that any potential criminal liability for Hayes depends on whether the governor was involved in the scheme is probably mistaken.

Update: On June 16, 2017 federal authorities announced they would be filing no criminal charges against Kitzhaber or Hayes. The investigation is now closed.

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