Bob McDonnell, former governor of Virginia, may end up beating the rap for all those gifts he got while in office from a snake oil salesman seeking help from the state government. Judging from Supreme Court arguments earlier this week [April 26], five or six of the justices seem ready to agree with McDonnell’s attorney and his many supporters that McDonnell’s public corruption conviction threatens the very nature of representative government in 21st century United States.
A ruling for McDonnell seems unlikely to revive the political fortunes of the one-time rising Republican star. But a broadly written decision to throw out the convictions will hamper future public corruption prosecutions and make the practice of “pay for play” all the more common than it already is: mostly legal if done with a wink and a nod.
A federal court jury of McDonnell’s peers (or perhaps his betters) convicted the former Republican chief executive of eleven counts of fraud in September 2014 after 17 hours of deliberation following a six-week trial. Ever since the scandal was first aired in the news media and then in court, McDonnell has stoutly maintained his innocence.
McDonnell insists that he never really did anything for the gift-giving diet supplement executive Johnnie Williams except meet with him, host events, and arrange meetings. The jury was not buying it, but McDonnell’s appellate attorney Noel Francisco made more headway with the argument at the Supreme Court.
Francisco urged the justices to rule that for a public official to engage in an “official act” under federal anti-corruption statutes the official “must either make an official decision or urge someone else to do so.” The line, Francisco said, is between “access to the decision-makers” apparently OK “and trying to influence those decisions.” Despite setting up the meetings, McDonnell never actually urged state regulators or university researchers to help Williams market or prove the efficacy of his Star Scientific diet supplement Anatabloc.
The justices probed Francisco’s arguments, but more politely than customary for a bench that remains very hot even after the volatile Antonin Scalia’s death. When the government’s lawyer Michael Dreeben took the lectern, however, he encountered tough questions quickly first from Chief Justice John G. Roberts Jr. and then the other two justices at the court’s ideological center, Anthony M. Kennedy and Stephen G. Breyer.
Silent during Francisco’s argument, Roberts began by quoting what he called an “extraordinary” amicus brief filed on behalf of White House counsels for the five past presidents. They all warned, Roberts said, that upholding McDonnell’s conviction would “cripple the ability of elected officials to fulfill their role in our representative democracy.”
Breyer too worried about public officials unclear about where to draw legal lines and about executive branch prosecutors with “dangerous” powers to go after legislators. “My problem is the criminal law as the weapon of choice,” he said.
The gifts that Williams lavished on McDonnell and his now estranged wife came to $175,000 in all, according to the government’s estimate. They are too numerous and too petty to mention all in a column, but among them a personally inscribed Rolex watch, golf equipment, golf outings, a vacation, and an outright undocumented five-figure loan. The justices, however, came up with hypotheticals that reduced the legal issue to trifles: an afternoon of trout fishing, Roberts suggested, or from Breyer a bottle of expensive French wine.
Dreeben, a deputy solicitor general with 27 years in the office, did his best to answer the justices’ concerns in what was his milestone 100th argument before the court. Legalizing this kind of quid for public officials is a “recipe for corruption” and would send a “terrible message for citizens,” Dreeben said. But where’s the quo, Roberts asked. Dreeben stood his ground. Helping arrange “a preferential opportunity” that other citizens do not have is “official action,” he answered.
When Francisco returned for rebuttal, Justice Ruth Bader Ginsburg put Dreeben’s argument to him, but Francisco similarly stood his ground. No crime, Francisco answered, if the official did not actually try to influence the outcome. Earlier, Justice Sonia Sotomayor had similarly challenged Francisco by suggesting that state officials certainly might have thought McDonnell was trying to influence them.
To Breyer’s concern, Dreeben pointed to the pride of the U.S. criminal justice system: the jury. “There is a very critical protection here,” Dreeben said. “It’s the requirement of showing something beyond a reasonable doubt to a jury.” Kennedy was unmoved. “You’re going to tell the senators, the officials with the lunches, don’t worry,” Kennedy said, mockingly. “The jury has to be convinced beyond a reasonable doubt, and that’s tough.”
Anti-corruption prosecutors and good-government types confront the stark reality that money is more and more the mother’s milk not only of politics but also of governance. And political practitioners are too clever to be constrained by straightforward quid pro quo bribery laws.
Neither of the statutes used in the McDonnell indictment is a bribery statute as such. The Hobbs Act, aimed at labor unions when enacted in 1946, prohibits obtaining money “under color of official right.” The “honest services fraud” statute, enacted in 1988, prohibits depriving someone (think: constituents) of “the intangible value of honest services.” A jury found McDonnell guilty of conspiring to do both. Oddly, a majority of the justices seem ready to narrow those laws to hold public officials not to the highest but to a lower standard.