In September 2014, former Virginia governor Robert McDonnell was sentenced to two years in prison for violating federal corruption laws. After a federal appeals court upheld his conviction and sentence, McDonnell asked the U.S. Supreme Court to allow him to delay his prison sentence until after the Court had weighed in on his case. That now looks like it may have been a wise request. After roughly an hour of oral arguments today, it seemed entirely possible that McDonnell may not have to serve his sentence for some time – if at all.
Once regarded as a rising star in the Republican Party, McDonnell was heavily in debt when he took office in January 2010 and losing more money every year on rental properties that he co-owned with his sisters. A Virginia businessman named Jonnie Williams came to his rescue. Over the course of roughly two years, Williams provided McDonnell and his wife, Maureen, with over a hundred thousand dollars in loans, luxury goods worth tens of thousands of dollars, and the use of a Ferrari for a weekend at Williams’s vacation home.
Williams’s motives were not altruistic. Instead, he was hoping to get McDonnell’s help in convincing researchers at Virginia’s public medical schools to conduct tests on Anatabloc, his company’s tobacco-based nutritional supplement – tests that the company itself could not afford, but which were necessary to secure FDA approval of Anatabloc. Anatabloc was eventually taken off the market, but not before prosecutors indicted both McDonnell and his wife (who was convicted and received a sentence of one year and one day for her role in taking the loans and gifts) on federal corruption charges, alleging that they received the loans and gifts in exchange for their efforts to help promote the product.
The statutes under which McDonnell was convicted make it a felony to agree to take “official action” in exchange for money, campaign donations, or anything else of value. Arguing for McDonnell (who was in the courtroom with his wife), lawyer Noel Francisco focused on the meaning of the term “official action.” For purposes of federal bribery laws, he described it as the difference between access and influence. Just referring someone to an independent decision maker, as McDonnell did, without trying to put a thumb on the scale, doesn’t cross the line and constitute an “official action,” he said. In fact, he emphasized, government officials refer their friends and family to official decision makers all the time, precisely because they are trying to avoid taking an official action.
The Justices spent much of Francisco’s argument trying to test the limits of that definition. If a company were to pay a government official to ensure that it was on the short list for a “very large contract,” Justice Elena Kagan asked, would that qualify as “official action”? Francisco agreed that it would be, because “the only way you can even get a decision in your favor is by being” on the short list.
But it would not be “official action,” he responded to a question from Justice Samuel Alito, if the governor of a state were to effectively auction off a seat at a meeting at which a project would merely be discussed, without a decision being made. Federal corruption laws, he explained, “are not meant to be comprehensive codes of ethical conduct,” but are instead just intended to target corruption of “official decision-making.”
Justice Ruth Bader Ginsburg had yet another hypothetical for Francisco later on in the argument. Would federal bribery laws allow Deputy Solicitor General Michael Dreeben, who argued today on behalf of the United States, to take five thousand dollars to set up a meeting with the criminal division of the Justice Department? Francisco responded that, if Dreeben was not actually trying to influence the outcome of a decision by the criminal division, it would not constitute the kind of “official action” that bribery laws prohibit. Francisco also emphasized repeatedly that, although different kinds of hypothetical conduct might not run afoul of the bribery laws, that conduct likely would violate other federal laws – in the Dreeben hypothetical, for example, a statute that prohibits federal officials from supplementing their income with private sources.
Justice Anthony Kennedy seemed to speak for several of the Justices, as he told Francisco, “I just don’t see the limiting principle.” Francisco conceded that “the limiting principle might be difficult in some cases,” and that there isn’t a “perfect and precise formulation” to distinguish between the kind of actions that violate federal bribery laws and those that do not. But, he added, this is an easy case, because the jurors who convicted McDonnell didn’t receive any instructions on when that line is crossed.
The Justices may well have had concerns that a ruling for McDonnell would mean that federal bribery laws would not apply to some clearly unseemly conduct. But those qualms also appear to be outweighed by concerns that a ruling for the government could sweep in all kinds of conduct that we regard as part of the normal day-to-day workings of politics and government.
Dreeben warned the Justices that McDonnell was asking for a “categorical carve-out from the concept of an ‘official act’ for things like meetings, phone calls, [and] events” that are only intended to provide access to the government, without trying to influence the decision-making process itself. But he was quickly interrupted by Chief Justice John Roberts, who read from a “friend of the Court” brief filed by a bipartisan group of former federal officials that included – among others – attorneys who had served as the White House counsel in the Reagan, George H.W. Bush, George W. Bush, and Obama administrations. Observing wryly that “it’s extraordinary that those people agree on anything,” Roberts turned to the conclusion on which they agreed: if McDonnell’s conviction and sentence are upheld, “it will cripple the ability of elected officials to fulfill their role in our representative democracy.” “Extraordinary,” Roberts repeated.
Justice Stephen Breyer also expressed apprehension. Under the government’s rule, he complained, political figures will be uncertain about what they can or cannot do. But, even more serious, he seemed to think, was the possibility that the Department of Justice could become the “ultimate arbiter of how public officials” are behaving all over the United States, in violation of the strict lines between the powers that are allocated to the three branches of government. It’s “dangerous,” he suggested, to give this kind of power to federal prosecutors. He acknowledged that a ruling against the government may not be perfect, and could result in some criminal conduct going unprosecuted. But that, he seemed to suggest, would be better than an overly inclusive rule.
Dreeben tried to assure the Court that the statute would not become a trap for the unwary, but his arguments seemed to fall on deaf ears. Telling elected officials that prosecutors would have to prove wrongdoing beyond a reasonable doubt, Kennedy countered, would not actually provide much comfort.
Alito then chimed in, explaining once again that the Justices were looking for a “limiting principle.” Under the government’s rule, he asked, why wouldn’t a senator commit a crime by trying to get a meeting for donors who had made large contributions to her campaign?
The Chief Justice joined the search for limits. If a governor is trying to attract jobs to his state, he asked, and the CEO of a company deciding where to locate a factory takes him trout fishing, is there a violation of federal law if, during the fishing expedition, the governor and the CEO discuss company tax credits for locating its factory there?
Dreeben answered that there is no violation of federal law. But he got into trouble when he added that an all-expenses-paid trip to Hawaii would be a different matter. That prompted Breyer to exclaim, “What’s the lower limit?” A ten-thousand-dollar vacation would violate the law, but trout fishing would not, he asked?
Toward the end of the argument, Justice Elena Kagan tried to suggest that the problem was not necessarily the law itself, but instead how federal prosecutors had gone about drafting the indictment in McDonnell’s case. If the indictment had indicated that the official action in the case was getting the University of Virginia to conduct clinical studies on Anatabloc, she indicated, that might pass muster. The problem, she continued, was that the indictment didn’t do that: instead, it described a lot of smaller pieces of evidence – such as allowing Williams to invite guests to a party at the governor’s mansion – as “official acts.” Dreeben responded that McDonnell had taken “every step short of actually telling UVA to do the studies,” and he explained that the charges provided a “composite window” into what McDonnell was trying to do, even if he didn’t explicitly say so. But with time running out, that line of thinking didn’t seem to go anywhere.
Will the Justices simply throw out McDonnell’s conviction, or will they take a broader step (as Roberts suggested was at least a possibility) and declare that the bribery laws used to convict him are so vague that they violate the Constitution? A decision isn’t expected until late June, but after today’s oral arguments McDonnell is likely holding a preliminary celebration tonight.