The McDonnell Case: the “Messages” to Citizens

May 2, 2016
posted by Bob Bauer

On two occasions, during the Supreme Court argument in the McDonnell case, the Deputy Solicitor General warned the court against narrowing prosecutable public corruption standards.  It would send a “terrible message” to citizens.  After the second time, Justice Breyer said he is “not in the business” of sending messages “in a case like this.”  He meant a case that raised fundamental separation of powers principles.  To what extent would vague criminal standards empower prosecutors with their considerable authority to prescribe the boundaries of acceptable political conduct?

Chief Roberts went further and said that the Court’s experience with the argument that very day might prompt doubts that the Justices were wise in Skilling have let the honest services statute pass constitutional muster.

It was in that way an extraordinary argument, highlighting through dead-end hypotheticals and confusing exchanges the ambiguity of the law–an argument that defied the best efforts at clarification of everybody involved.

When did an “official action” arise out of a senior official’s referral of a matter for decision to someone else in the executive bureaucracy?  Would it matter that the decision-maker “felt pressured” by the referral?  And if it was a subjective test, judged by the sensibilities of the message’s audience, did the pressure reasonably experienced depend on the position of the government official making the referral?  For example, Chief Justice Roberts asked, does the same referral on the same issue constitute more pressure if made by the President rather than by a lesser official?  Or to put the point with somewhat less illustrious figures, does the pressure rise if a member of the City Council and not the Mayor makes the call?

The Court also batted back and forth with counsel the question of whether the analysis was affected by the value received by the official in providing this assistance. There was a discussion of whether a trout fishing trip would rise to the same level of offense, triggering prosecution, as a payment of $10,000 in cash. The Justices spoke of their appetites for limiting principle, and did not seem to find that one was offered.

In worrying about the message sent to citizens, the Deputy SG insisted that the Court had to find a way to prevent money from exchanging hands for “access.”  It was then pointed out that campaign contributions could be said to buy access of this kind: the Supreme Court in both Citizens United and McCutcheon thought that was fine.  The government replied that campaign contributions were different, but later in the argument, it seemed that they were not all that different if the access was part of a quid pro quo exchange and did not follow the contribution as a “coincidence” of timing.

Counsel to McDonnell pointed out that the absence of a remedy in the criminal laws did not mean no remedy at all. The State of Virginia responded to the McDonnell case by tightening its government ethics rules: some thought it could have done more, and other states have.  There are also federal statutes that could help out, like the one that does not permit a government official to supplement her salary with private funds.  The issue before the Court was the application of amorphous criminal standards like “honest services” to the messy facts of political life, and the law appeared no less amorphous for all the time and energy devoted during the argument to clarifying it.

Zephyr Teachout has since written about the importance of the “principle” of bribery at stake in the case—the importance of “broadly” construing the “axiom that an official shouldn’t accept gifts for public duties.”  She is worried about “winking and nodding” and the sneaky stuff politicians might do.  In this respect, Ms. Teachout takes the amorphousness of the legal standards to be a virtue.  She largely dismisses the fear that without careful attention to the clarity and focus of public corruption criminal law, the rules intended to control bad politics may become themselves too much a branch of politics.  She is less troubled by the potential for prosecutorial abuse than by a ruling that would “leave citizens facing a crisis of political corruption with even fewer tools to fight it.”

The McDonnell argument occurred shortly before former Alabama Governor Siegelman was put into solitary confinement. Incarcerated for having denied the citizens of his state his “honest services,” he apparently ran afoul of prison rules by selling a T-shirt on EBay.  It is reported that he was raising funds for a documentary to establish the political basis, as he sees it, of his prosecution.  He was trying to send a different “message to citizens.”

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