Authored Articles & Publications Jun 27, 2016

High Court Clarifies “Official Act” in Former Gov. Bob McDonnell Decision

By Gary W. Schons

Today’s U.S. Supreme Court decision overturning the bribery convictions of former Virginia Gov. Bob McDonnell should come as a no surprise to anyone versed in the high Court’s recent public corruption jurisprudence. However, from the decision, it would be hard to guess that prior opinions had anything to do with the outcome of this case or the underlying animus for the decision authored by Chief Justice Roberts for a unanimous Court.

First the facts: McDonnell all but solicited and eagerly accepted more than $175,000 in gifts, including a $55,000 loan, a $20,000 shopping spree in Manhattan, lavish meals and $15,000 in cash, from Virginia businessman Jonnie Williams. Williams was keen to have McDonnell help him push his diet supplement product by getting Virginia’s public universities, including the one founded by Thomas Jefferson, to study the product. McDonnell contacted these school officials to promote a study of William’s product. Although the university studies did not materialize, McDonnell arranged meetings between Williams and state officials and hosted a lunch party at the Governor’s Mansion. At that lunch, McDonnell touted the product and once produced a bottle of the product at a meeting with the head of the state employee health plan and suggested that state employees start taking the supplement.

The receipt of the “quid” — the gifts — was undeniable. But what McDonnell challenged was the existence of the “quo”— whether what he did amounted to “official action” within the ambit of the federal bribery statute (18 U.S.C. §201). In essence, McDonnell argued that even “exchanging” (the “pro”) meetings, promotion and contacts with state university officials for cash, on its own, did not constitute bribery. McDonnell’s argument plugged into the animating notion of the Court’s prior decisions that “ingratiation and access…are not corruption.”

The Court overturned McDonnell’s convictions on the basis that the trial court had provided erroneous jury instructions on the meaning of what constitutes an “official act” in the federal bribery statute. The Court held that “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy” — each of which are similar in nature and interdependent in their statutory meaning. The Court held those matters must also be something specific and focused that is “pending” or “may by law be brought” before a public official.

The Court held that there were at least three “questions” or “matters” related to the Williams-McDonnell relationship that qualified:

  1. possible state university research;
  2. allocation of state grant money to fund research of William’s diet supplement; and
  3. whether the state health insurance plan would cover the supplement.

To qualify as an “official act,” the Court held, the public official must make a decision or take an action on that “question” or “matter,” or agree to do so. Further, 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.

So far, so good for the government’s position as it appears that is precisely what McDonnell did.

But where the Court found fault was that merely “setting up a meeting, talking to another official, or organizing an event [or agreeing to do so]” — a phrase Roberts repeated in his opinion — does not fit that definition of “official act.” Thus, the jury instruction, in suggesting otherwise. was erroneous and the convictions could not stand.

Roberts explained that, if such activity was swept into the federal bribery statute, it would “cast a pall” on “the basic compact underlying representative government” — that is to say, how business gets done in politics and government.

Why was this outcome so predictable? Because, starting with its notorious 2010 decision in Citizens United, the Court has made clear that the only actionable public corruption is “quid pro quo” bribery, beyond merely exerting influence over or gaining special access to a politician or office holder. In its Enron decision (Skilling), the Court said that bribery did not reach “subtle forms” of corruption and misconduct, like self-dealing and buying access and influence. And in its 2014 decision in McCutcheon v. FEC, the Court ruled out regulating the buying of influence over or special access to elected officials, because that, said the Court, is not “corruption.” But the reader of the McDonnell decision would hardly know of any of this prelude because, except for a single citation to Skilling early in the opinion, the decision makes no mention of any of this jurisprudence.

Note: This article originally appeared on the now-defunct BBKnowledge blog, where Best Best & Krieger authors shared their knowledge on emerging issues in public agency law.

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