In McDonnell Decision, Supreme Court Places Important Limits On Prosecutors
In overturning former Virginia Governor Bob McDonnell's conviction, the Supreme Court has sent a powerful message to overly zealous prosecutors.
As James Joyner has already noted, today a unanimous Supreme Court overturned the conviction of former Virginia Governor Bob McDonnell and, in the process, arguably made it far more difficult to convict anyone of public corruption based on current law:
WASHINGTON — The Supreme Court on Monday made it harder to prosecute public officials for corruption, unanimously vacating the conviction of Bob McDonnell, a former governor of Virginia.
Chief Justice John G. Roberts Jr., writing for the court, narrowed the definition of what sort of official act can serve as the basis of a corruption prosecution. The act must be a formal, specific and focused exercise of government power, he said, “such as a lawsuit, hearing or administrative determination.” And prosecutors must prove, the chief justice continued, that the defendant made a decision or took action on the matter, or agreed to do so.
The alternative, Chief Justice Roberts wrote, would be to criminalize routine political courtesies.
“Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time,” he wrote.
If corruption is defined too broadly, the chief justice wrote, government officials would be wary of serving their constituents.
“Officials might wonder,” he wrote, “whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.”
The Supreme Court returned the case to an appeals court for an assessment of whether prosecutors in Mr. McDonnell’s case had presented evidence to satisfy the narrow definition of corruption announced Monday. If so, prosecutors may seek to retry Mr. McDonnell, but under the stricter standard.
In a statement, Mr. McDonnell said he was innocent and expected to be vindicated.
“I have not, and would not, betray the sacred trust the people of Virginia bestowed upon me during 22 years in elected office,” he said. “It is my hope that this matter will soon be over and that my family and I can begin to rebuild our lives.”
Mr. McDonnell, a Republican, was charged with using his office to help Jonnie R. Williams Sr., who had provided the McDonnells with luxury products, loans and vacations worth more than $175,000 when Mr. McDonnell was governor. The gifts themselves were legal, and the question in the case was whether they were part of a corrupt bargain in which Mr. McDonnell reciprocated by using the power of his office to help Mr. Williams.
Mr. McDonnell arranged meetings for and attended events with his benefactor. But Mr. Williams, whose company made a diet supplement, did not have any real success in obtaining support for his product from the state. A jury found that Mr. McDonnell’s actions amounted to corruption, and a federal appeals court upheld the conviction.
Last year, the Supreme Court allowed Mr. McDonnell to stay out of prison while the court considered whether to hear his case, McDonnell v. United States, No. 15-474. That unusual order was a powerful hint that the court might be inclined to rule in his favor.
The hint proved right, though Chief Justice Roberts stopped well short of endorsing Mr. McDonnell’s actions.
“There is no doubt that this case is distasteful; it may be worse than that,” the chief justice wrote. “But our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns. It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this court.”
In their briefs to the Supreme Court, Mr. McDonnell’s lawyers relied on the Citizens United decision in 2010, in which the Supreme Court said that “ingratiation and access” were “not corruption.” That year, the court ruled in favor of a former Enron executive, Jeffrey K. Skilling, saying that a federal anticorruption law governing “honest services” applied only to bribes and kickbacks.
Chief Justice Roberts’s opinion did not address Citizens United or the First Amendment argument on which it was based. But he did say that proof of something akin to bribery was required in corruption prosecutions.
“Of course,” he added, “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,” Chief Justice Roberts wrote. “And if the official agreed to exert that pressure or give that advice in exchange for a thing of value, that would be illegal.”
Lyle Denniston analyzes this opinion:
Federal prosecutors had successfully argued, at McDonnell’s trial and in reaction to his appeal, that doing an “official act” in return for gratuities meant “nearly any activity by a public official.”
Insisting that such a sweeping interpretation not only did not square with the text of the criminal laws at issue, but also raised constitutional questions, the Court took several paragraphs to spell out what is, or is not, the kind of “official act” that will expose an official to charges of corruption.
First, the Court said that the kind of government activity that had to be involved was something akin to a lawsuit, a court proceeding, or some other explicit official activity. Holding a typical meeting, making a call, or arranging an event, when done by an elected official, does not cross the line, the opinion declared. The matter that a constituent seeks to have influenced by the official, the opinion said, must be an agency proceeding that is “specific and focused.”
Second, the elected official’s move to do a favor regarding such a matter, the Court said, must be an explicit attempt to influence, or coerce another official to influence, the outcome of such a proceeding. Here is the way the Court phrased that point:
“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…does not qualify as a decision or action on the pending question” of whether a government agency should take an explicit action in favor of a constituent.
The Chief Justice made clear that the decision was driven in considerable part by the Court’s worry that the way McDonnell’s case unfolded — from the prosecutors’ bold charges — was a threat to the way representative government normally works. “The basic compact underlying representative government,” he wrote, “assumes that public officials will hear from their constituents and act appropriately on their concerns…The government’s position could cast a pall of potential prosecution over these relationships” if the constituents had made a campaign contribution or made a modest gesture of entertainment or an outing such as a ball game.
On some level the Court’s decision here isn’t exactly surprising. As I noted when the Court heard oral argument in this case in April, each of the Justices seemed skeptical of the government’s argument regarding its use of a public corruption law in a way that it admittedly had never been used before. Indeed, both prior to McDonnell’s conviction and during the appeals process several groups of law professors and former Virginia Attorneys General from both sides of the political aisle who argued that applying the law to a case like this, where there was no real evidence that McDonnell had done anything in exchange for the gifts he and his wife received from businessman Johnnie Williams other than arrange a meeting or two that Williams arguably could have gotten even without the Governor’s assistance, involved an interpretation of the law that defied logic. That argument is summarized in an amicus curiae brief filed by this same group of scholars and former government officials in the Supreme Court. Additionally, the fact that no state agencies ever actually did anything favorable for Williams, these parties argued, made the argument that McDonnell had engaged in public corruption a difficult one at best. Both the trial Judge and the panel of Judges at the Fourth Circuit Court of Appeals who considered this case prior to the Supreme Court accepting the appeal rejected this argument and sided with the Federal Government. Today, the Supreme Court told them they were wrong to do so.
With respect to the issue of arranging meetings, Chief Justice Roberts put it this way in the Court’s unanimous opinion, referencing the aforementioned amicus brief:
[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.” Six former Virginia attorneys general—four Democrats and two Republicans—also filed an amicus brief in this Court echoing those concerns, as did 77 former state attorneys general from States other than Virginia—41 Democrats, 35 Republicans, and 1 independent.
The Washington Post‘s Chris Cillizza frets that this opinion will make public corruption convictions more difficult, but Cato’s Tim Lynch argues that this is part of the point that the Court was trying to make, and calls the decision a victory for civil liberties:
Chief Justice Roberts made it clear that the underlying facts were distasteful (the McDonnells exercised extremely poor judgment), but the Court had to consider the implications of the government’s “boundless interpretation” of the federal corruption statutes. By its unanimous vote, the Court has sent a powerful signal to both the U.S. Attorney General and the lower federal courts: Stop stretching the laws to cover grubby politicking; only crack down on old-fashioned bribery. Lastly, the Court noted that due process requires that people have fair notice of what conduct is criminal and what conduct is lawful. When the government urges broad interpretations of the criminal statutes, due process is threatened. To avoid that danger, courts should generally embrace a more confining view of the statute and thus federal prosecutorial power.
It may appear abstract, but look at what happened today. Prosecutors asked that Robert McDonnell be imprisoned ten years for his conduct. Today, he remains a free man because it is not obvious that his conduct was unlawful. There might still be a retrial, but the prosecution’s theory was unanimously rejected by the Supreme Court.
It strikes me that Lynch has the better of the argument here, and that while McDonnell’s behavior was distasteful, the attempt to stretch the law to make what he did criminal was entirely inappropriate. As Chief Justice Roberts notes, it’s hard to see what the difference is between what McDonnell did and politicians do all the time when dealing with constituents, whether those constituents are average citizens or a businessman or businesswoman who happens to require access to a particular government official to deal with a regulatory roadblock or other issue that may be adversely impacting their business. Furthermore, there is a general principle in the law that says that criminal statutes should be construed as narrowly as possible and only applied to unique situations if its clear that there is a reason to believe that the legislature intended for the statute to be applied as the prosecutor wishes to apply it. If the answer is no, then the answer is to get the law amended or pass a new law, not to apply existing law far beyond where it was intended to go. For that reason, I believe the Court got it essentially correct here.
As my many posts about the charges against McDonnell and his subsequent trial and appeal made exceedingly clear, I don’t have a whole lot of sympathy for the former Governor. Leaving aside the question of whether or not he broke the law, the fact that he essentially used his position as Governor to allow himself to receive gifts from someone seeking access to state government officials was a stupid move on his part, and quite frankly distasteful. And I say that as someone who voted for him in 2009. At the same time, though, it was clear that there was nothing in state law that forbid McDonnell from doing what he did, and the manner in which Federal prosecutors were seeming to stretch the meaning of a long-standing public corruption statute to cover what he did, using an an interpretation of the law that had never been tried in a Federal Court before, was troublesome and the argument that we were dealing with an overly ambitious U.S. Attorney was one that resonated with many of McDonnell’s friends and whatever political allies he had left by the time he left office. At the same time, the fact that a Federal District Court Judge, a jury, and a panel of Federal Appeals Court Judges had signed off on the U.S. Attorney’s interpretation of the law suggested that perhaps these concerns were not well-placed. As I sit here today, though, I can’t say I’m disappointed in the outcome. The Justice Department tried to stretch the law far beyond its original intended use and got its hand slapped pretty hard by a unanimous Supreme Court. And, even if McDonnell ultimately sees the charges against him dropped due to prosecutors inability to prosecute him under the guidelines the Court set in its opinion, he will still never live down the reputation he left office with. For a guy who was openly mentioned as being on Mitt Romney’s short list for Vice-President just four years ago, if not a candidate for President in his own right, it’s quite a fall. But, he has nobody to blame but himself.
Here’s the opinion: