Some Thoughts on Today’s Oral Argument in Gov. McDonnell Case: It’s Not If the Governor Wins on Appeal, But How, That Matters

The Supreme Court has posted the transcript of today’s oral argument in the Gov. McDonnell case.  Bob Barnes (who is all over this story) says the Justices were “highly skeptical” of McDonnell’s conviction. I agree that a reversal seems likely.  But the key question is whether the Court is going to say anything, building off of Citizens United, allowing politicians to sell access to them for an explict price. My guess is that the Court thankfully will not do so, in part to have a unanimous opinion. The concern instead is with vague or overbroad laws applied against politicians by sometimes overzealous and politicized prosecutors which allows for the criminalization of politics, a concern I’ve expressed about prosecutions of Rick Perry, Tom DeLay, John Edwards, and Don Seligman.

Justice Breyer, one of the more liberal Justices, explains his two fundamental problems with criminalizing conduct in which an elected official asks another government official to take a meeting with someone who has supported the elected official or taken the elected official to lunch on pages 31-33 of the transcript. The first problem is vagueness–what is allowed and what is not; the second problem, which Justice Breyer refers to as a “separation of powers” argument, is that overzealous prosecutors can decide what every federal, state, or local official can do in terms of arranging meetings. Breyer calls this a “virtually uncontrollable” and “dangerous” power.

This is the key exchange. If you’ve lost Justice Breyer here, you’ve likely lost the case.

Justice Kagan later expresses concern at the very least with the jury instructions and how the case was handled, suggesting the possibility of a remand with proper instructions (but I don’t think that’s likely.)

Michael Drebeen, the government’s excellent lawyer (making his 100th Supreme Court argument, for which he was commended at the end of the argument) had a tremendous amount of trouble with hypotheticals raised by the Chief Justice and Justice Breyer. The exchange seemed to indicate the point that the statute is vague and gives lots of discretion to prosecutors as to which cases to bring (especially against state and local officials, who do not have the more detailed federal ethics rules to follow).

The best point for the government’s position came in the rebuttal time, when McDonnell’s lawyer Noel Francisco faced a tough set of questions from Justice Ginsburg (whom he inadvertently referred to as Justice O’Connor, leading to a slightly embarrassing exchange). Justice Ginsburg asked (at page 59), essentially: if your position is right on what an official meeting is, why can’t a government official say, you want to have a meeting, pay me a thousand dollars? In part Francisco’s answer was that if it someone is paid to arrange a meeting but there’s no indication it is to influence the outcome of a government decision, it cannot be bribery. But he also noted, at least for federal officials, there are other statutes that could apply here, such as laws prohibiting government employees from taking payments for the performance of your official duties.

There seems little question that McDonnell will win on this appeal, and the interesting question will be what the Court says about the sale of access and Citizens United. It is possible to write an opinion for McDonnell without saying it is permissible to sell access, or at least that the sale of access is not a criminal violation. The fact that even Justices Breyer and Kagan expressed considerable skepticism explains why Gov. McDonnell got his rare relief of staying out of jail pending the Supreme Court’s resolution of this case.

As I read the transcript, I could not help thinking of Justice Scalia’s absence. This is a case he would have loved to discuss, and I imagine that he would have given Mr. Drebeen an even harder time than he got in this argument (with no doubt as many “(Laughter)” references as Justice Breyer got referring to fancy bottles of wine and french meals).

[This post has been updated.]

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