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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