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.

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