June 27, 2016 12:43PM

McDonnell Ruling Is a Victory for Constitutional Due Process

Today, the Supreme Court issued a unanimous ruling on the closely watched corruption case concerning former Virginia governor, Robert McDonnell. McDonnell and his wife were charged with a Hobbs Act violation and honest services fraud. The McDonnells had accepted $175,000 in loans and gifts from the CEO of Star Scientific, a nutritional supplement developer. Merely accepting gifts is not a crime, however. Under the honest services statutes and the Hobbs Act, a government official must have exchanged “official acts” for those gifts. The crux of the case boiled down to what, exactly, constitutes an “official act”.

The prosecution argued that McDonnell made five official acts, all in furtherance of getting Star Scientific’s new supplement, Anatabloc, tested by Virginia's public universities, which would greatly assist the FDA-approval process. The acts included sending aides to view and take notes at meetings between the CEO and others, hosting events where he encouraged state universities to conduct studies on Anatabloc, contacted other officials within the governor’s office to encourage the same studies, allowing the CEO to invite business partners to events at the governor’s mansion, and suggesting that Anatabloc be a part of the state healthcare plan.

Another “official act” was an email saying “pls see me about Anatabloc issues at VCU and UVA."

Jonnie Williams, the CEO, failed in his attempts to get state universities to conduct his studies, but according to the prosecution, it was the intention to influence the process which triggers the corruption charges.

The situation does look suspicious on its face, but a problem stems from the fact that if the government construes the term “official acts” this broadly, it could criminalize many actions which officials take in order to make government function more smoothly for any and all of its constituents. If the prosecution succeeded in its argument (and it had succeeded in two lower courts before making its way to SCOTUS), it could punish any official who sends or forwards an email to a slow-moving bureaucracy urging them to remedy the problems of an aggrieved citizen. It could punish any official who invites business leaders to an event. It could punish any official who attends an event which is promoted by business leaders. And it could punish an official who asks any of his subordinates to take notes at any of these meetings. During oral arguments, Justice Breyer said, “For better or for worse, it puts at risk behavior that is common.”

Seventy-seven former attorneys general from a variety of states agreed with these fears and reiterated them in an amicus curiae brief. “McDonnell’s acts were ‘assuredly ‘official acts’ in some sense,’ but they ‘[were] not ‘official acts’ within the meaning of’ the federal bribery statutes. United States v. Sun-Diamond Growers of Cal.” Lastly, from page 5 of the same, “And when they ask their legal advisers, ‘Does this violate the law?’ too often the reply will be, ‘We really don’t know.’”

Here's an excerpt from the ruling:

[C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.

This concern is substantial. White House counsel who worked in every administration from that of President Reagan to President Obama warn that the Government’s “breathtaking expansion of public-corruption law would likely chill federal officials’ interactions with the people they serve and thus damage their ability effectively to perform their duties.” Six former Virginia attorneys general—four Democrats and two Republicans—also filed an amicus brief in this Court echoing those concerns, as did 77 former state attorneys general from States other than Virginia—41 Democrats, 35 Republicans, and 1 independent. [internal citations removed]

Chief Justice Roberts made it clear that the underlying facts were distasteful (the McDonnells exercised extremely poor judgment), but the Court had to consider the implications of the government's "boundless interpretation" of the federal corruption statutes.  By its unanimous vote, the Court has sent a powerful signal to both the U.S. Attorney General and the lower federal courts: Stop stretching the laws to cover grubby politicking; only crack down on old-fashioned bribery.  Lastly, the Court noted that due process requires that people have fair notice of what conduct is criminal and what conduct is lawful.  When the government urges broad interpretations of the criminal statutes, due process is threatened.  To avoid that danger, courts should generally embrace a more confining view of the statute and thus federal prosecutorial power.

It may appear abstract, but look at what happened today.  Prosecutors asked that Robert McDonnell be imprisoned ten years for his conduct.  Today, he remains a free man because it is not obvious that his conduct was unlawful.  There might still be a retrial, but the prosecution's theory was unanimously rejected by the Supreme Court.

Related item here.