“There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns.” — Chief Justice John Roberts, McDonnell v. United States (unanimous opinion)
Everyone agrees that what former Republican Virginia Gov. Bob McDonnell and his wife Maureen did was scummy, or worse. They accepted more than $175,000 worth of gifts, shopping trips, travel, and other benefits from Jonnie Williams, a Virginia businessman who sought the governor’s help in getting the state to fund research on and otherwise promote a tobacco-based “nutritional supplement” he was hawking.
But corrupt and criminal are not synonymous, and so a unanimous Supreme Court today vacated the Governor’s conviction.
Why? Because bribery (and related charges) require both a quid —some inducement being offered—and a quo—an official act undertaken because of it. And whatever McDonnell did—arranging meetings for Williams with other state officials to discuss his product, hosting events for it at the governor’s mansion, and contacting other government officials concerning studies of the supplement—these weren’t by themselves “official acts.” More is required to draw the line between the scummy and the sentence-worthy.
What more? And why is this not necessarily a bad decision?
Essentially, the Court drew a line between “a typical meeting, call, or event” on the one hand, versus a “decision or action” on the other.
For example, a decision or action to initiate a research study—or a decision or action on a qualifying step, such as narrowing down the list of potential research topics— would qualify as an “official act.” A public official may also make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy” by using his official position to exert pressure on another official to perform an “official act.” In addition, if a public official uses his official position to provide advice to another official, knowing or intending that such advice will form the basis for an “official act” by another official, that too can qualify as a decision or action for purposes of §201(a)(3). See United States v. Birdsall, 233 U. S. 223, 234 (1914) (finding “official action” on the part of subordinates where their superiors “would necessarily rely largely upon the reports and advice of subordinates . . . who were more directly acquainted with” the “facts and circumstances of particular cases”).
Under this Court’s precedents, a public official is not required to actually make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy”; it is enough that the official agree to do so. The agreement need not be explicit, and the public official need not specify the means that he will use to perform his end of the bargain. Nor must the public official in fact intend to perform the “official act,” so long as he agrees to do so.
So, where is the line between access for dollars and criminal corruption? The Chief Justice continues:
It is up to the jury, under the facts of the case, to determine whether the public official agreed to perform an “official act” at the time of the alleged quid pro quo. The jury may consider a broad range of pertinent evidence, including the nature of the transaction, to answer that question.
Setting up a meeting, hosting an event, or calling an official (or agreeing to do so) merely to talk about a research study or to gather additional information, however, does not qualify as a decision or action on the pending question of whether to initiate the study. Simply expressing support for the research study at a meeting, event, or call—or sending a subordinate to such a meeting, event, or call—similarly does not qualify as a decision or action on the study, as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an “official act.” Otherwise, if every action somehow related to the research study were an “official act,” the requirement that the public official make a decision or take an action on that study, or agree to do so, would be meaningless.
Of course, this is not to say that setting up a meeting, hosting an event, or making a phone call is always an innocent act, or is irrelevant, in cases like this one. If an official sets up a meeting, hosts an event, or makes a phone call on a question or matter that is or could be pending before another official, that could serve as evidence of an agreement to take an official act. A jury could conclude, for example, that the official was attempting to pressure or advise another official on a pending matter. And if the official agreed to exert that pressure or give that advice in exchange for a thing of value, that would be illegal.
But why does there need to be a line at all? Because you’d be sweeping up a whole lot of innocent behavior as well, and ceding power to prosecutors to pick and choose who their opponents of the week are.
[C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.
This concern is substantial. White House counsel who worked in every administration from that of President Reagan to President Obama warn that the Government’s “breathtaking expansion of public-corruption law would likely chill federal officials’ interactions with the people they serve and thus damage their ability effectively to perform their duties.”
[And as many of you know, my legal practice involves the representation of public officials and candidates, and they want to know “can I take this meeting? can I make this ask?” This decision gives them clearer lines to follow.]
Accordingly, McDonnell’s trial judge erred because he didn’t instruct the jury to identify a “question, matter, cause, suit, proceeding or controversy” involving his formal exercise of governmental power, that it "must be more specific and focused than a broad policy objective,” and most pressingly that the jury needed to find that McDonnell made a decision or took an action—or agreed to do so—on the identified “question, matter, cause, suit, proceeding or controversy."
His conviction is therefore vacated, with the court below allowed to determine whether there is sufficient evidence for a jury to convict McDonnell of committing or agreeing to commit an “official act,” which would justify a retrial.
I have a few thoughts as well:
- First off, thanks to a well-placed friend, I was able to attend the Court’s session today and watch the justices announce their opinions in the three final cases. It is really, truly something to be in that chamber, to be that close to the justices and hear them in their own voices, and if you ever have the opportunity to do so, you should.
- Retired Justice John Paul Stevens, now 96, came in for the last day of the Term. It was immensely cool to see him walk in at 9:55 am. (More color from the day here.)
- You really are required to sit in total silence as the Court is in session, but there was a collective tiny-tiny-tiny sigh of relief, multiplied, when the Chief Justice announced that Justice Breyer had the decision in the Texas clinic access case.
- Justice Alito read from his dissent in that case, which focused on why it was inappropriate for the Supreme Court to tackle the asked-and-answered or otherwise precluded challenges to Texas’ restrictive laws; Justice Thomas did not read from either of his dissents.
- If you are despairing about the McDonnell decision, remember two things: (a) it was unanimous, which should tell you something about its possible solid grounding, and (b) transparency and limits are a meaningful answer. Tighter gift laws, like what Virginia passed in the wake of this scandal, as well as limits on the amounts and sources of campaign contributions, can limit how much “buying” influence seekers can do. And enhanced transparency on lobbying—requiring influence seekers to detail exactly who they lobbied, on which bills or official actions, as well as what gifts or hospitality (if any) were provided—gives the public the information it needs to help determine who’s worthy of public office.
Because after all, we shouldn’t have to wait for prosecutors and juries to decide who gets to stay in public office. We have a say as well.