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Opinion Critics of McDonnell decision misstate the case

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Those disappointed that former Virginia governor Bob McDonnell was not carted off to prison seem in many cases to misunderstand the Supreme Court’s decision. It does not make corruption convictions overly difficult; it reaffirms corruption law as it has operated for decades before the Obama Justice Department got hold of the McDonnell case. It was the prosecution that was seeking to unmoor corruption law from statutory language, rendering it unworkable and dangerous.

Let’s be clear about what the court did do. The justices unanimously reiterated the common sense and textual definition of “official act” that prosecutors, public officials and the latter’s attorneys have understood. An excerpt from Chief Justice John Roberts’s opinion should suffice to demonstrate there is plenty of room for prosecutions under the terms of the statute:

First, the Government must identify a “question, matter, cause, suit, proceeding or controversy” that “may at any time be pending” or “may by law be brought” before a public official. Second, the Government must prove that the public official made a decision or took an action “on” that question, matter, cause, suit, proceeding, or controversy, or agreed to do so. . . .
The Government argues that nearly any activity by a public official qualifies as a question or matter—from workaday functions, such as the typical call, meeting, or event, to the broadest issues the government confronts, such as fostering economic development. We conclude, however, that the terms “question, cause, suit, proceeding or controversy” do not sweep so broadly. The last four words in that list—“cause,” “suit,” “proceeding,” and “controversy”—connote a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination.

An actual exercise of governmental power. That’s hardly going to put a crimp in diligent prosecutions:

In sum, an “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.”

It should console disappointed onlookers that 77 former state attorneys general submitted an amici brief to advocate for the exact result the court came up with. The alternative would have represented a gross expansion of corruption law — one not used for a slew of corruption prosecutions over the years. Pointing out that encompassing virtually any task as an “official act” would give unlimited leeway to prosecutors, they wrote: “The upshot is that state officials will not know that they may have committed a federal crime until the local federal prosecutor informs them that their lunch presentation at the local chamber of commerce was one link in a chain adding up to bribery. Such a fundamental transformation of criminal jurisdiction should come, if at all, through an unambiguous act of Congress, not through a judicial gloss on a vague statute.” They continued: “Criminalizing wide swaths of state political life will make politics risky business for those constituents, too. The Government can prosecute constituents under the same statutes that underlie Mr. McDonnell’s convictions.”

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Put it this way: Even taking a meeting with the Sierra Club or attending a Human Rights Campaign banquet could be criminal if their members ever gave to an official’s campaign. Telling a union chief or a business leader that “my door will always be open” might qualify as setting up the basis for an “official act” if that person or his organization was a donor. As attractive as that sounds to some, that is not how we want a representative democracy to function.

The warning from the state attorneys general was echoed in another brief, this one from former Virginia attorneys general:

[T]hese federal criminal statutes apply not just to the officeholders who received the contributions; they apply as well to the citizens who gave them. The expansive interpretation of those statutes by the court of appeals will chill the exercise by citizens of their First Amendment rights to participate in the democratic process. Such a result, if not overturned by this Court, would wreak havoc on the public life of this nation.

Whether it was state prosecutors or “White House counsel who worked in every administration from that of President Reagan to President Obama,” various briefs made the case that  “breathtaking expansion of public-corruption law would likely chill federal officials’ interactions with the people they serve,” the chief justice wrote. Even if Congress wanted such a result, it is not clear it would pass congressional muster.

There is a reason this approach to corruption prosecutions hasn’t been tried. Just imagine how it would be used in a Trump Justice Department.

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