Why Bob McDonnell Won’t Save Bob Menendez

U.S. Senator Robert Menendez is facing trial this fall on corruption charges. His lawyers will claim the Supreme Court’s recent decision in the Bob McDonnell case means the charges against Menendez cannot stand. But the effect of the McDonnell case on the Bob Menendez trial is likely to be pretty limited.

New Jersey Democrat Menendez and his co-defendant Dr. Salomon Melgen were indicted in April 2015. (You can find my detailed analysis of the indictment here.) The case has been on hold for two years while Menendez pursued claims that his prosecution is barred by the Constitution’s Speech or Debate clause. The trial court and the U.S. Court of Appeals for the Third Circuit rejected those arguments. The Supreme Court recently declined to hear his appeal, finally clearing the way for the case to go to trial.

But while Menendez was pursing his Speech or Debate appeals, the U.S. Supreme Court decided McDonnell v. United States. The Court reversed the convictions of the former governor of Virginia, holding that McDonnell did not perform “official acts” as defined by federal bribery law.

Senator Menendez and his lawyers are hoping that McDonnell will breathe new life into his own defense. They will argue that Senator Menendez, like Governor McDonnell, did not agree to perform any official acts. But for Menendez that’s going to be an uphill battle.

Senator Robert Menendez

Senator Robert Menendez

The Charges Against Senator Menendez

The Menendez/Melgen indictment describes a long-term bribery scheme. It charges that Melgen repeatedly provided Menendez with valuable gifts including multiple trips on his private jet, repeated stays at a luxury villa in the Dominican Republic, and hundreds of thousands of dollars in contributions to campaigns and legal defense funds. In exchange, Menendez allegedly interceded on Melgen’s behalf in several different government disputes. The government also alleges Menendez took steps to conceal these facts, including failing to report any of Melgen’s gifts.

The actions Menendez allegedly took on Melgen’s behalf fall into three general categories:

Visas:  In 2007 and 2008, Menendez and his staff contacted various embassy and State Department personnel to help three different foreign girlfriends of Melgen obtain visas to come to the United States.

Port Screening Contract:  Melgen owned an interest in a company that had a contract with the Dominican Republic to provide x-ray screening of cargo entering Dominican ports. The contract, potentially worth many millions of dollars, had been tied up in disputes. Menendez and his staff contacted different State Department officials, urging them to pressure the Dominican government to implement the contract. At one point Menendez met with an Assistant Secretary of State and said he was unsatisfied with the way State was handling the matter. Menendez allegedly threatened to hold a hearing and call the Assistant Secretary to testify.

Medicare dispute:  Melgen, a prominent Florida ophthalmologist, was embroiled for several years in a multi-million dollar dispute over his Medicare billings. He was allegedly using an eye medication designed for a single patient to treat two or three people. He would then bill Medicare as if he had purchased a separate vial for each patient. When Medicare discovered this practice they began pursuing claims against Melgen for overbilling.

Menendez and his staff worked for several years to help Melgen resolve this dispute. Menendez personally met with the Secretary of Health and Human Services and with the acting director of the Center for Medicare and Medicaid Services to advocate on Melgen’s behalf.

(As I write this, Dr. Melgen is currently on trial in Florida on a separate indictment charging him with Medicare fraud based in part on this scheme.)

What will be the effect of the McDonnell case on the Bob Menendez trial?

Former Virginia Governor Bob McDonnell

The McDonnell Decision

A jury convicted former Virginia Governor Robert McDonnell and his wife Maureen of multiple counts of corruption in September 2014. The McDonnells accepted more than $170,000 in gifts and undocumented “loans” from businessman Jonnie Williams. In return, prosecutors charged, the McDonnells agreed to promote Anatabloc, a dietary supplement made by Williams’s company, within the Virginia government.

A unanimous panel of the United States Court of Appeals for the Fourth Circuit upheld the convictions. But in June 2016 the U.S. Supreme Court unanimously reversed, holding that the steps taken by McDonnell on Williams’s behalf did not constitute “official acts” under federal bribery law. (You can find my more detailed analysis and critique of the Court’s opinion here.)

The Court based its decision on the language of the federal bribery statute, 18 U.S.C. § 201. That statute defines bribery, in part, as a public official accepting something of value in exchange for agreeing to be influenced in the performance of any “official act.” It further 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 . . . . ”

The evidence had shown that McDonnell made phone calls on Williams’s behalf, arranged meetings for Williams with other Virginia government officials, and hosted a product launch event for Anatabloc at the Governor’s mansion. The Court held that these actions, standing alone, did not amount to “official acts” and could not support a bribery conviction.

The Court broke its analysis down into two steps, focusing on the precise language of the official act definition. First, one must identify the relevant “question, matter, cause, suit, proceeding or controversy” to which the alleged bribe relates. This language, the Court held, connotes a “formal exercise of government power, such as a lawsuit, hearing, or administrative determination.” It suggests something that is “relatively circumscribed – the kind of thing that can be put on an agenda, tracked for progress, and checked off as complete.”

Second, the Court said, the public official must agree to take a “decision or action” “on” the relevant matter, suit or controversy. This requires that the official take some steps to address or decide the matter, or to influence or advise others to do so. In particular, the requirement that the decision or action be “on” the matter – and not merely “about” or “related to” the matter – suggests the official is working to resolve it somehow.

The Court concluded that McDonnell’s actions did not amount to official acts under this analysis. There were several Anatabloc-related issues that could constitute a “question, matter, cause, suit, proceeding, or controversy.” But simply making phone calls or arranging meetings did not amount to “decisions or actions on” any of those questions. McDonnell introduced Williams to various officials and extended other political courtesies related to Anatabloc. But McDonnell did not himself take steps to resolve any of the matters or pressure others to do so. Accordingly, the Court concluded, a bribery conviction based on McDonnell’s actions could not stand.

Did Senator Menendez Perform “Official Acts?”

Even before McDonnell was decided, Senator Menendez had filed motions arguing he had not performed any official acts. The trial court denied those motions back in 2015. Now, in the wake of McDonnell, Menendez will undoubtedly renew those arguments.

If we follow the Supreme Court’s two-step approach from McDonnell, it’s pretty easy to define the relevant “question, matter, cause, suit, proceeding or controversy” for each aspect of Menendez’s case:

1) Should the State Department grant a visa to allow this individual to enter the United States?

2) Should the U.S. government work to persuade the Dominican government to implement the port security contract?

3) Should HHS modify its rules concerning the dosing of a particular eye medication? Or, more specifically, should the Department pursue its claims against Dr. Melgen about alleged overdosing?

Each of these is a circumscribed issue, a question that could be put on an agenda and checked off as resolved. They are the type of specific administrative or policy matters that McDonnell requires.

Menendez will argue that he, like McDonnell, did not take any “decisions or actions on” the defined matters. But Menendez’s actions were much more substantial than McDonnell’s. Menendez did not simply arrange meetings for Melgen or introduce him to other officials. The Senator himself attended various meetings and otherwise advocated for Melgen’s interests. Unlike McDonnell, Menendez was actively engaged in trying to influence the outcome of the matters in question.

An official act must also involve a matter that is “pending, or which may by law be brought before any public official . . . . ” Menendez will also argue that the identified matters were never pending before him and that he did not have the power to decide them. As a result, he will claim, his advocacy on these matters cannot amount to official acts by him.

But the Supreme Court in McDonnell squarely addressed this question. The Court held that a “decision or action” may include influencing another public official who has the power to decide: “decision or action may include using his official position to exert pressure on another official to perform an ‘official act,’ or to advise another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.’”

In other words, the official act does not have to be one the defendant himself has the power to resolve. It is sufficient if the defendant attempts to pressure, persuade, or advise another public official to perform an official act.

In the Menendez case the relevant matters were pending before various Executive Branch officials. Their resolution of those questions would constitute official acts. The indictment alleges that Senator Menendez attempted to pressure or persuade those officials to resolve the matters in Melgen’s favor. McDonnell makes it clear that such efforts can be official acts by Menendez,.

Heads I Win, Tails You Lose

Menendez has put himself in a bit of a box with the legal arguments he has already pursued. He argued all the way to the U.S. Supreme Court that the actions he took on Melgen’s behalf were part of his official duties as a U.S. Senator and should therefore be shielded by the Speech or Debate Clause. Courts rejected those arguments because the Speech or Debate Clause shields only legislative activities. Lobbying Executive Branch officials is not protected.

Now Menendez will be arguing that those same actions were so unconnected to his position as a Senator that they could not be official acts. As the government has pointed out, Menendez effectively has argued that nothing a U.S. Senator does can be prosecuted as bribery: if it’s not a legislative act shielded by the Speech or Debate clause, then it’s not an official act and can’t support a bribery conviction. Heads I win, tails you lose.

For example, in their original motion to dismiss based on failure to allege official acts, filed on July 20, 2015, his lawyers argued: “With respect to a U.S. Senator, invoking oversight authority and a threatened use of official powers would be an official act, but it also would be immunized by the Speech or Debate Clause.” (p. 6 fn. 4). But the courts have now rejected the latter half of that claim.

With respect to the Medicare dispute and the port contract issue, the government is indeed alleging that Menendez threatened to hold hearings and otherwise to invoke his oversight authority. Having conceded that these would amount to official acts, it will be a challenge now for the defense to claim otherwise without developing whiplash.

Effect of the McDonnell case on the Bob Menendez trial

As with all criminal trials, the Menendez case is going to come down to the government’s evidence. Menendez may claim that in his interactions with Executive Branch officials he was merely seeking information. He may argue he was not advocating for Melgen or trying to influence those officials. If that turns out to be true, it may be a defense. Merely attending a meeting to gather information would probably not fit the Supreme Court’s definition of official act.

But the government is alleging much more. It intends to prove that Menendez was vigorously advocating on Melgen’s behalf, trying to persuade or pressure Executive Branch officials to decide questions in Melgen’s favor. Such actions would fall squarely within McDonnell and would qualify as official acts by Menendez.

McDonnell’s primary effect will be on the jury instructions. Menendez’s lawyers will not get the case dismissed prior to trial based on the official act issue. Even in McDonnell the Supreme Court did not say it was impossible for any jury to find McDonnell guilty. The problem was that the jury was not properly instructed about the definition of official acts.

The McDonnell case will therefore shape the Menendez jury instructions concerning what the government must prove about official acts. The defense will argue the government has not met its burden. But if it proves the allegations in the indictment, the government should have no trouble meeting the McDonnell standard.

Every public corruption defendant for the foreseeable future is going to seek salvation in the McDonnell opinion. Menendez may have some other viable defenses, including his claim that there was no quid pro quo and that Melgen’s gifts were based simply on friendship. But the McDonnell case and the definition of official act are unlikely to save him.

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Selling Access: President Trump, Corruption, and the Legacy of Bob McDonnell

President Donald Trump took office last week amid a storm of controversy over ethics and potential conflicts of interest. There are widespread concerns about possible corruption in the Trump administration. A key focus has been the Emoluments Clause of the Constitution, which forbids federal officials to accept any payments or gifts from foreign governments. Trump’s extensive international business holdings appear to make violations of that clause almost inevitable. (I wrote last November about the Emoluments Clause and how it relates to bribery; you can find that post here.)

Trump recently did announce some steps to transfer control of his businesses to his sons, although it is unclear to what extent that has actually taken place. The head of the U.S. Office of Government Ethics, Walter Shaub, pronounced these efforts wholly inadequate  – and promptly found himself summoned to Capitol Hill to explain his temerity to a Congressional committee. Then this past Monday a public watchdog group and several prominent law professors filed a lawsuit asking a federal court to rule that the new president is already violating the Emoluments Clause.

But the Emoluments Clause is only one of the conflict of interest issues surrounding President Trump. A related ethical concern is the potential for access to the President and his administration to be used as a bargaining chip in his private business dealings. Businesses or governments could secretly agree to provide benefits to Trump-owned businesses in exchange for a private audience with the President or other Executive Branch officials, where they could lobby for government actions that would benefit them. The breadth of the President’s business holdings — and his refusal to divest himself of those holdings – creates an unprecedented risk of such conflicts.

Trump and his family have already demonstrated what might charitably be called a lack of sensitivity to the ethical issues that surround selling access to the White House. In December a nonprofit where Trump’s sons were registered as directors promoted an inaugural event called “Opening Day,” supposedly to benefit unnamed charities related to conservation. It offered donors of $1 million attendance at a private reception with the President-elect, as well as a four-day hunting or fishing excursion with one of his sons. In another incident, a charitable group ran an on-line auction of an opportunity to have coffee with Trump’s daughter Ivanka. The bidding was above $70,000 before the effort was shut down following media inquiries.

Even though the money from such events may go to charity, the buyer’s motives are not necessarily charitable. For example, the high bidder in the auction for coffee with Ms. Trump told the New York Times that he wanted to urge her to persuade her father not to go too far in restricting immigration. Another bidder hoped to speak to her about the Trump administration’s relationship with the Turkish government.

These efforts to sell access to the President and his family raised ethical red flags for a simple reason: access is valuable. Time on any senior government official’s schedule is a scarce commodity. Those able to meet personally with that official (or his family) have an advantage generally unavailable to ordinary citizens: the ability to directly and privately advocate for their own interests. Attempts to cash in on access to government officials – even for charitable causes – are deemed inappropriate because time with those who are supposed to serve all citizens should not be auctioned off to the highest bidder.

But public charity sales of access are just the tip of the potential ethics iceberg. Of far greater concern are transactions that could take place entirely out of public view. For example, imagine this hypothetical: a foreign company is negotiating some kind of deal with a Trump organization business. The company’s officers make it known that they will offer a sweetheart deal at substantial savings if, in exchange, Trump sets up a meeting for them with the Secretary of Commerce to discuss removing certain import restrictions that apply to the company’s products. (Note that because this hypo involves a private company, not a foreign government, the Emoluments Clause would not apply.)

Trump agrees and the deal goes through. Because it involves two private companies, it is not publicly disclosed. Trump then calls the Secretary of Commerce and says, “These guys are friends of mine, I’d like you to meet with them and hear what they have to say about these import sanctions.” Trump doesn’t tell the Secretary about the art of his deal with the company. He also doesn’t tell the Secretary how to decide the question, but the Secretary is no dummy and can read between the lines to see what would please the boss. The meeting happens, the import restrictions are lifted, both sides are happy, and the country is none the wiser.

Remarkable as it may seem, if such a scheme took place it would not violate federal bribery law. And for that, President Trump can thank the former Governor of Virginia – and the U.S. Supreme Court.

Image of Bob McDonnell, former governor of Virginia, whose case paved the way for corruption in the Trump administration

Access for Sale: McDonnell v. United States

Regular readers know that I’ve written a number of posts about McDonnellhere, here, and here, for example – that provide more details about the case. In brief, former Virginia Governor Robert McDonnell and his wife Maureen were prosecuted for essentially selling access to Virginia government officials. Businessman Jonnie Williams was interested in having Virginia universities conduct research on his company’s dietary supplement Anatabloc. Over a two-year period he gave the McDonnells a variety of personal gifts and loans worth more than $170,000.

In exchange, the McDonnells agreed to help promote Anatabloc within the Virginia government. Governor McDonnell arranged meetings for Williams with various government health officials and researchers so Williams could make his pitch. He also held a product launch event for Anatabloc at the Governor’s mansion, attended by state health officials and other government employees.

The McDonnells were found guilty of multiple counts of corruption following a jury trial, and the Fourth Circuit Court of Appeals unanimously upheld their convictions. But last June the U.S. Supreme Court unanimously reversed, holding that the actions taken by McDonnell on Williams’ behalf were too inconsequential to support a bribery conviction.

The Supreme Court held that simply arranging a meeting, making a phone call, or holding an event did not constitute an “official act” under federal bribery law. An official act, the Court said, requires the public official to take some more substantive steps to resolve a particular question or matter that may be pending before the government, or to pressure another official to do so. Preliminary actions or political courtesies such as arranging a meeting, the Court held, do not rise to that level.

After McDonnell, merely arranging access to government officials may not form the basis of a corruption conviction, even in extreme circumstances. For example, a governor could establish a policy whereby anyone who wanted to meet with a member of his administration had to pay the governor $10,000 to arrange the meeting. Similarly, a company could offer millions of dollars in secret benefits or concessions to a Trump business in exchange for a private dinner with the President or meeting with a Cabinet official. Neither arrangement would violate federal bribery law.

Bribery laws aim to prevent government officials from using their public office to enrich themselves by offering favorable treatment to those willing to pay. Determining whether such a corrupt arrangement exists requires looking at the entire agreement – the quid, the pro, and the quo – and not just focusing on a single side of the equation. The McDonnell decision, through its myopic focus on the meaning of “official act,” effectively took off the table an entire area of public corruption law: the sale of access to government officials.

Image of a bribe taking place - bribery is a key corruption offense

Not All Access is Created Equal

Those familiar with the ways of Washington may observe that access is always up for sale to some extent. It’s just a reality of politics. Large campaign or PAC donors are regularly treated to private events with public officials. For example, large donors to the Presidential Inaugural last week were rewarded with access in the form of a candlelight dinner with Trump and Vice-President Pence at Washington’s Union Station.

This is part of what motivated the Supreme Court in McDonnell. The Court was concerned that if providing access could support a bribery conviction, then many routine interactions with supporters and political courtesies might end up being prosecuted. But again, this mistakenly focuses only on one side of the equation. It’s true that arranging a meeting may be an innocent political courtesy, just as voting on a bill may be a routine political act. But if either is done in direct exchange for a corrupt, secret gift that enriches the politician, that is neither innocent nor routine.

In deciding whether a sale of access might be corrupt, one should consider the whole picture. For example, donations to campaigns take place within a legal framework that generally involves at least some public disclosure and contribution limits. The public is able to see who is supporting the official and to what extent, and to judge the official’s actions accordingly. Sunlight is the best antidote for corruption.

Our current campaign finance system, whatever its flaws, is legal. Contributions made within the framework of that system come with almost a presumption of regularity, and are on a completely different footing from secret, undisclosed gifts. Access may be provided after such contributions, but proving corrupt intent in a case involving lawful contributions will be extremely difficult.

Another distinction is the type of access provided. There’s a big difference between attending a dinner or reception with a few hundred other donors (even by candlelight) and a one-on-one private meeting with an official. The former is more likely to be just a social event where the donors enjoy simply being in the presence of power and perhaps get a chance for a selfie; that is not a setting conducive to corrupt, secret deals.

But the most crucial factor on the quid side of the analysis can be summed up in the immortal words of Watergate’s Deep Throat: follow the money. Campaign contributions go to the campaign, a separate legal entity, as do donations for things such as PACs or Inaugural events. The public official is benefitting indirectly, to be sure, but the support is directed more at the office and campaign and not to line the official’s own pockets.

Contrast this with what Jonnie Williams gave to the McDonnells – secret gifts that enriched the family personally. These were not campaign contributions or other legitimate donations. Rolex watches, New York shopping sprees, and sweetheart loans do not show up on campaign finance reports, are not subject to any legal limits, and personally enrich the official. Unlike routine campaign or PAC contributions, secret gifts to a politician have no legitimate or legally recognized purpose and automatically have the whiff of corruption about them.

The point of all this is simply that it should not be enough to say, “Well, all he did was arrange a meeting, so there can be no corruption.” All of the circumstances surrounding any alleged deal have to be examined. The secret sale of access to public officials causes the exact harm that laws against bribery are intended to prevent: politicians enriching themselves by handing out favors only to those willing to pay. Unfortunately, the McDonnell decision has created a safe harbor for just that kind of corruption.

The Need for Divestiture

Some might suggest this is not a serious problem because there are other potential controls besides the criminal law. For example, the attempts to sell access for charitable causes that I mentioned at the top of this article were exposed and then cancelled. Perhaps the voters and the media can police any such misconduct and shame officials into proper behavior. Ultimately, unhappy voters can always express their displeasure at the ballot box.

But the problem with relying on public pressure and media scrutiny to police such actions is that it assumes full access to information. Most corruption takes place in secret. Although the charitable fundraising efforts were necessarily public, backdoor deals are not. Corruption and conflicts of interest can be very difficult to detect. This is why divestiture of assets that pose a potential conflict is so important: it removes even the possibility of using the power of one’s office to profit off of those assets.

The scenarios outlined here are hypothetical, of course. But the potential for this President to enrich himself and his family through the power of his office is truly extraordinary. With a green light from the Supreme Court, Trump and his family are free to use access to Washington power as a bargaining chip in his private business dealings, taking comfort in the fact that even if their actions come to light, they will not be unlawful.

Yet another way in which the Trump presidency is unprecedented.

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White Collar Crime, Prosecutorial Discretion, and the Supreme Court

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

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

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

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

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

doj seal

Prosecutorial Discretion and White Collar Crime

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

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

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

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

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

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

The Supreme Court Limits Prosecutorial Discretion

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

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

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

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

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

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

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

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

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

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

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

The Future of Prosecutorial Discretion

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

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

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

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

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

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

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

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

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

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

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

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

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The Bob McDonnell Case May Have Been Won Months Before Trial

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

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

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

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The Definition of “Official Act”

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

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

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

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

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

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

The Charges in McDonnell’s Case

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

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

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

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

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

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

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

The Essence of Bribery

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

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

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

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

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

How “Official Acts” Became the Focus

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

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

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

The Consequences of a Definition

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

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

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

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

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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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