Can corrupt politicians still be locked up now that the Supreme Court on Monday unanimously redefined the rules in vacating the 2014 federal conviction of former Virginia Gov. Bob McDonnell?
McDonnell had been indicted for honest services fraud and Hobbs Act extortion charges in connection with the acceptance of $175,000 in loans, gifts, and other benefits while in office.
The head of the Virginia-based company Star Scientific, Jonnie R. Williams, wanted the state’s backing for his effort to get federal approval for a dietary supplement he sought to produce.
According to the U.S. Solicitor General, McDonnell and his wife Maureen “solicited and secretly accepted more than $175,000 in money and luxury goods … The funds included loans, deluxe shopping trips, golf outings and a Rolex watch” in return for agreeing to “use the power of his office to help Williams’s company.”
In order to convict, the prosecution had to prove McDonnell committed an “official act” in exchange for the loans and gifts.
But McDonnell said he actually never took any official action on behalf of the company.
So what is an “official act”?
An “official act” is defined in the law 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, in such official’s official capacity, or in such official’s place of trust or profit.”
That’s pretty broad. And any time criminal laws are broad, there’s room for expansive readings and selective prosecutions.
In this case, according to the prosecution, McDonnell’s “official acts” included arranging meetings, hosting events and “contacting other government officials.”
That’s the problem with broadly drafted laws: they cover bad behavior and a lot of other behavior too. Obviously, if the governor had commandeered the National Guard to spy on a wealthy donor’s ex-wife in exchange for a bag of cash, well, that’s the kind of official corruption we want to avoid. But what about the case where a donor—also a constituent—merely voices his opinion on an issue and the official also advocates a similar view?
If you are a governor, faced with a criminal definition like that, would you feel confident that you know what conduct is allowed and what isn’t?
The very essence of politics is quid pro quo—Latin for “something for something”.
Why do people donate to presidential or gubernatorial campaigns in the first place? It’s not because they’re charitable folks. If so, they’d donate to the United Way or the Red Cross. People donate to politicians because they are looking to buy a little influence here and there. It’s hard to craft criminal laws that filter out corruption from legal donations.
Certainly, there’s corruption that should be prosecuted. For example, if state employees are bribed to issue drivers licenses to less-qualified truck drivers, that’s bribery. It’s especially bad if those less-qualified drivers hurt someone.
Corruption can directly hurt citizens by providing them inferior government services, which is why it’s understandably a top priority for the DOJ.
But introducing people? Arranging a meeting? Those are the kinds of things politicians do all the time, as part of their job. Under the law as the DOJ has interpreted it, if those actions are beneficial to a donor, or to someone who has given anything of value to the official, it’s potentially criminal. The “quid pro quo” requirement for corruption convictions is notoriously minimal.
Concededly, it is tough to determine whether an official action was taken because of a gift, or because the official simply believed it was the best course of action. Congress decided to address this problem and draft the anti-corruption laws, not with a scalpel but with a battle axe.
The statutes on bribery, extortion and similar laws contain inclusive, nebulous definitions, while offering little guidance on the difference between politics as usual, and a federal indictment. When it comes to corruption, the Department of Justice is limited not by the U.S. Code, but by the U.S. attorneys’ own discretion and resources.
Monday, the Supreme Court finally reeled it in … a little. While it was an 8-0 decision, it could hardly be said that the Court ratified McDonnell’s conduct in office. Indeed, the decision leaves open the possibility of McDonnell’s conviction after a new trial if prosecutors could produce stronger evidence. The Court narrowly ruled that the jury instructions did not adequately guide the jurors on the term “official act” in the federal bribery statute.
The Court held that an “official act” is a formal exercise of governmental power on a “question, matter, cause, suit, proceeding or controversy,” that may be brought before that official. And if that definition is still hazy, the Court offered some clarity on McDonnell’s case: setting up a meeting, talking to another official, or organizing an event — without more — does not fit that definition of “official act.”
Let’s face it. More than ever, the public has a dim view of politicians. And there has been plenty of corruption in government. The solution, however, is to ferret out the truly criminal activity — not to simply pass laws that make everything illegal, thereby giving the DOJ unfettered power to convict anyone it chooses. The very job of being an elected official means marshaling your influence on behalf of your constituents’ desires … how are we to know where the line is between illegal and legal conduct?
Usually that guidance comes too late, in the form of a knock on your door by the FBI, or a secret grand jury indictment. Before the McDonnell case, every phone call answered or meeting arrangement was potentially criminal — just by virtue of the conversation itself. Now, after McDonnell, phone calls and meetings are …well, actually… they are still potentially criminal, depending on the facts and additional evidence in each case. And even with this ruling, the DOJ still has plenty of other broadly drafted statutes at its disposal in the fight against corruption.