By Steve Duckett
Steve Duckett is a criminal defense attorney in Manassas, Virginia, with Price Benowitz LLP. Steve defends clients in Virginia and federal court, and his practice includes white collar defense, felony allegations, and DUI cases.
On Wednesday, April 27, the Supreme Court heard its final oral argument of the term, regarding former Virginia Republican Governor Bob McDonnell’s federal corruption conviction. In 2014, McDonnell and his wife were convicted on 11 counts of corruption after accepting over $177,000 in gifts from Star Scientific’s CEO Jonnie Williams, Jr.
Such gifts included a Rolex watch, about $20,000 in designer clothes for McDonnell’s wife, $15,000 for their daughter’s wedding, and several paid trips and golf outings.
McDonnell’s conviction was upheld by the United States Court of Appeals for the Fourth Circuit in Richmond, though his two-year prison sentence is currently on hold while the Supreme Court appeal proceeds.
In Wednesday’s argument, the Court was asked to decide whether the jury should have been instructed on how to determine whether an action constituted an “official act.”
As a result, the Court grappled with the thorny issue of whether granting a meeting with an official body can be considered an official act in and of itself. In many ways, the deliberation on the ethics and legality of “pay-to-play” politics called the 2010 Citizens United (pdf) case to mind, in which the Court endorsed “routine courtesies” between politicians and wealthy businesspeople.
The arguments heard by the Court in McDonnell’s case seemed to center largely around whether or not McDonnell took the money to perform “official acts” as governor.
Specifically, McDonnell’s attorney, Noel Francisco, argued that the jurors likely would not have convicted McDonnell if they had been asked to determine whether McDonnell’s actions were “official acts”, because McDonnell did not try to influence the independent judgment of any public official. To the contrary, Francisco argued, all McDonnell did was grant a meeting with officials who were exercising their own independent judgment. For his part, Jonnie Williams claimed that he did favors for McDonnell in order to have the governor’s help in arranging contracts in state government for William’s business products.
The Chief Justice and his colleagues made clear that they were searching for a “limiting principle” for the law by which McDonnell has been convicted. If such a principle does not exist, that could mean that “nearly every politician could be put at legal risk and the executive branch would be turned into a morality superintendent of political life in America.”
Federal bribery laws prohibit quid pro quo arrangements where, in exchange for an official act (the quo), someone gives a public official something of value (the quid). However, according to law, the value of the quid does not matter. That means, as long as the government can prove the quid, any following quo can be interpreted as part of a quid pro quo. The Department of Justice (DOJ) argued that the jury can infer the existence of intent by the very pattern of the quid pro quo. Furthermore, the DOJ argued that scheduling a meeting for someone qualifies as an official act.
The Justices expressed grave concern over how this would play out, where a quid of any value (e.g., a $5 lunch by a constituent), with a corresponding quo (a representative getting a meeting for that constituent with HUD), could result in politicians ending up in jail.
Some of the Justices were skeptical, posing hypotheticals for McDonnell’s attorney in an effort to establish where such limits on the law might be found. Justice Kennedy remarked, “I just don’t see the limiting principle,” seemingly speaking for some of his colleagues as well.
Francisco conceded that the limiting principle is hard to find in some cases, but also claimed that this helps McDonnell’s case because the jurors who convicted him also did not know where this line can or cannot be crossed.
In all, the Justices seemed wary of deciding in favor of the prosecution because of the case’s potential overreach on day-to-day government affairs.
A ruling upholding this anti-corruption law could potentially allow the Department of Justice to have considerable reach into the workings of public officials, which would be a serious breach of separation of powers. Justice Breyer voiced his concern that it would be “dangerous” to give such power to federal prosecutors.
It will be interesting to see how far the Justices take their decision – will they uphold the anti-corruption law, will they simply throw out McDonnell’s conviction, or will they declare the anti-corruption law unconstitutional altogether?