Tokaji: The Overreaction to McDonnell

Monday’s unanimous opinion in McDonnell v. United States has triggered a range of strong reactions. Some have lamented or even excoriated the decision for enabling corruption, while others have celebrated the Court for reining in overzealous prosecutors.  A careful look at what the opinion actually says reveals that both these reactions are exaggerated, if not plain wrong.

McDonnell clarifies what must be proven to convict someone of bribery under federal law. Bribery requires a quid pro quo, an offer or agreement to exchange something of value for an “official act.”  The critical question before the Court was what counts as an official act.

The government argued that Governor McDonnell’s official acts included arranging meetings, hosting events, and contacting government officials on behalf of a company trying to market a nutritional product.  The company’s CEO was giving McDonnell and his wife lots of goodies – like private plane rides, vacations, use of a Ferrari, and cold hard cash – at the same time of these acts.

Not so fast, said the Court: making phone calls and setting meetings aren’t official acts, standing alone.  But they could still form the basis for a bribery conviction, if they’re sufficiently connected to a decision the state makes or an action it takes.  That would include, for example, a university’s decision to undertake a research study on the product the company was trying to sell.  It would also include the state’s decision about what drugs are covered by its health plan.

Now here’s the key point that’s been missed in almost all the post-decision commentary: a public official may be convicted of bribery for exerting “pressure” or offering “advice” regarding such an official action. More specifically, the Court says that a public official may properly be convicted of bribery for “using his official position [1] to exert pressure on another official to perform an ‘official act,’ or [2] to advise another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.” The Court repeats the “pressure” and “advice” formulation several times, evidently hoping that no one would miss it.

Will this really make it too hard to prosecute public officials for bribery? Not at all.  Suppose for example that a governor makes a phone call to a state university official, asking whether the university was planning to undertake research on a particular pharmaceutical product.  Depending on the circumstances, that phone call might be considered “pressure.”  Or suppose that a governor emails an official at the agency responsible for running the state’s health plan, touting the benefits of a particular drug that’s not currently covered.  That might be deemed “advice.”

This sounds a lot like what Governor McDonnell actually did. So why did the Court vacate his conviction rather that affirming it?  Because in our criminal justice system, it’s the jury’s responsibility to weigh the evidence and find the facts necessary to convict.  And in this case, the jury wasn’t told that there had to be pressure or advice to convict McDonnell of bribery.  The trial judge instead told the jury that official acts may include “acts that a public official customarily performs, including acts ‘in furtherance of longer-term goals’ or ‘in a series of steps to exercise influence or achieve an end.’”

It’s possible that the jury would have convicted Governor McDonnell, even if it had been told that pressure or advice is necessary to convict. But we can’t be sure – not beyond a reasonable doubt – that the jury would have convicted him if properly instructed.  The Court thus had no choice but to vacate and send the case back to the lower courts.  Harmless error rules shouldn’t be diluted just because one thinks Governor McDonnell belongs behind bars.

There’s another point that almost all the post-McDonnell commentary has missed:  the opinion actually makes it easier to prosecute public officials for bribery in one respect.  For years, lower courts have struggled with the question whether there has to be an explicit agreement to exchange something of value for an official act, in order to obtain a bribery conviction.  The uncertainty arises from conflicting signals in two prior Supreme Court cases: McCormick v. United States (1991) and Evans v. United States (1992).

McDonnell says there doesn’t have to be an explicit agreement:  “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” (emphasis added).  Now this may be dicta, and it’s conceivable that an explicit agreement would be required in the case where the quid is a campaign contribution rather than cash and gifts.  With those caveats, this aspect of McDonnell actually makes it easier to prove public corruption.

What all this means is that much of the commentary on the decision misses the mark. Good government advocates needn’t worry that the decision will make it too hard to get bribery convictions. I suspect most juries won’t have a hard time finding “pressure” or “advice” where evidence like that in Governor McDonnell’s case is presented.  By the same token, libertarians shouldn’t be too heartened by McDonnell.  The Court has clarified the legal requirements for bribery convictions, but juries may infer the exchange of material benefits for political favors even if there’s no proof of an explicit agreement.  And that means ethically challenged politicians like Governor McDonnell shouldn’t feel too comfortable either.


What Abortion and Voter Fraud Have in Common …

Paul Waldman provocatively argues:

Simply put, there is no argument Democrats or Republicans have offered more disingenuously in recent years than the claim that the regulations one conservative state after another has passed on abortion clinics are only in the service of “protecting women’s health.” From the first moment, it was a fraud, a scam, a lie so transparent and obvious that it’s a wonder the Republicans making the claim didn’t dissolve into giggles every time they spoke it aloud. The only other example that comes close is the Republican claim that their efforts to make it harder for Democratic-leaning groups to vote is only for the purpose of stopping “voter fraud.”


Did the Trump Campaign Violate Federal Law by Soliciting Scottish MPs?

The Scotsman reports that Trump “emailed Scottish MPs from all parties last week urging them to ‘make America great again’ by donating to his campaign,” getting a firm no from at least one.  Federal law prohibits foreign nationals from making contributions, as well as the solicitation, acceptance, or receipt of contributions from foreign nationals.  This could be a problem, if the Trump campaign knew or had reason to know it was soliciting foreign nationals.


Breaking: SCOTUS Won’t Hear Delaware Campaign Disclosure Case, as Justice Thomas Dissents

The Supreme Court refused today to hear another challenge to a campaign finance disclosure law in the Delaware Strong Families case. Justice Alito would have heard the case. Justice Thomas issued a dissent from the cert denial, arguing the Court should take the case to hold that the government interest in providing information to voters can never justify a campaign finance law.


This is cert denial shows that campaign finance disclosure laws remain on strong constitutional footing. The holes in our disclosure laws are the fault of Congress, the FEC, and the IRS.

This is good news for supporters of strong disclosure, though the Delaware law was quite strict.


Influence of Justice Scalia Felt in Unanimous Decision Throwing Out Gov. McDonnell Conviction

The Supreme Court’s unanimous ruling throwing out the conviction of Gov. McDonnell (while leaving open the possibility of a retrial on a narrower theory of the case) is sensible and courageous, and shows the continuing important influence of Justice Scalia in this area of the law. It is hard to write an opinion letting off the hook someone whose actions were as odious as Gov. McDonnell, in taking rolexes, funding for his daughter’s wedding and more from someone who wanted the governor’s assistance in marketing the equivalent of snake oil. But it was the right thing to do.

In an earlier case, Sun-Diamond, Justice Scalia wrote a majority opinion (involving the conviction of Agriculture Secretary Mike Espy on illegal gratuity charges) in which Justice Scalia warned about the criminalization of ordinary politics. This unaninimous opinion by Chief Justice Roberts follows that same lead. It is not enough that conduct is odious—the rules governing political action need to be clear enough so that politicians know the line between politics as usual and crossing the line. In this case, all the government had to prove was that the Governor contacted state officials and asked them to take a meeting with the donor. The government did not have to prove that the Governor sought to influence anyone’s decision on anything. This raised problems of both a vague statute as well as overzealous prosecutors (as I argued in an earlier oped in the NLJ). Prosecutors seek to make a name for themselves by going after corrupt politicians. But vague and broad laws criminalizing ordinary politics raise due process problems, selective prosecutions, and unfair treatment. Justice Scalia signaled this and here a unanimous court followed his lead.

Justice Scalia’s influence was also felt in the mode of analysis. Tellingly, Chief Justice Roberts begins with a textual analysis of the statute, and the canon of construction known as noscitur a socciis.  He uses the textual tools to define what counts as an official act, and reads that statute in a way that avoids vagueness and makes sense. At least in the ordinary run of cases, Justices today follow Scalia’s lead and start with a textual analysis. It is not always the end of the analysis, but it is always the beginning. And in a case like this, presenting issues of possible overreach, the textual analysis lined up with the pragmatic analysis.

This opinion does not mean that there’s an easy path to corruption. Every state should make it illegal for public officials to accept large gifts from non-family members. And it may be on remand that McDonnnell will get convicted. But the law, and the line between politics and crime, must be clear. On this point, the Court was able to speak in one voice, and the case would have been 9-0 not 8-0 had Justice Scalia not died in February.


McDonnell on What Is and Isn’t an “Official Act”

From p. 14 of the slip opinion:

Taking into account the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we reject the Government’s reading of §201(a)(3) [the federal bribery statute] and adopt a more bounded interpretation of “official act.” Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an “official act.”

From pp. 21-22:

[A]n “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.  The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.”

And from p. 28:

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. 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.


Breaking: SCOTUS to Hear NC Racial Gerrymandering Case

This morning the Supreme Court agreed to hear a racial gerrymandering case from North Carolina, on an appeal brought by the state (in McCrory v. Harris).  This joins the Bethune-Hill case from Virginia, which the Court also agreed to hear.

In Bethune Hill, the three-judge court on a divided basis concluded there was no racial gerrymander.  In the North Carolina case, the three-judge court found there was a racial gerrymander.

I expect the Court will consider the cases together, even if they are not formally consolidatated.

Assuming there are no new Justices before these cases are heard and the Justices vote the way they voted before in the Alabama racial gerrymandering case, we go in with a 5-3 Court at least sympathetic to such claims in the abstract brought by minority plaintiffs against Republicans.  Kennedy sided with the liberals in the Alabama case.

You can find NC’s six questions presented in this jurisdictional statement.


Hearing in Louisiana Republican Party’s Challenge to Soft Money Ban

Bloomberg BNA ($) has this story on yesterday’s hearing before a three-judge district court, including U.S. Circuit Judge Sri Srinivasan who was reportedly skeptical of the argument pressed by plaintiffs’ attorney Jim Bopp:

While the logic of the high court’s recent majority opinions [like Citizens United and McCutcheon] might indicate soft-money ban is on shaky ground, Srinivasan said, a lower court must be reluctant to overturn a provision specifically left in place by the Supreme Court. Such a move “just sounds like something we’re not supposed to do,” he said.

BNA also reports that about half the 90 minute argument was spent discussing whether plaintiffs have standing.


Drutman on Rauch and Responsiveness

Lee Drutman has this piece on Vox responding to Rauch. Drutman argues:

The current chaos is instead the logical backlash to the inequalities that the existing power structures have created in order to maintain themselves. What we’re seeing now is what happens when party elites and political leaders ignore the economic concerns of their voters for too long, and then stir up anger and resentment to distract from that fact. It’s a product of too little democratic responsiveness, not too much.

Worth reading!


Stanford Law Review’s Election Law Issue

Thanks to Rick for handing me the keys during his trip to Asia.

No better place to start than the Stanford Law Review‘s star-studded election law issue, which includes Rick’s article Election Law’s Path in the Roberts Court’s First Decade and: