A theme appearing in a number of post-McDonnell commentaries and editorials is that the Court has made more difficult the prosecution of bribery-based public corruption. It is certainly true that the Court has pared down the reading that could be given to bribery, and especially of the pay to play sort: paying for access alone, in the “typical form, such as arranging a meeting or phone call for someone to make a case for government action. As a practical matter, however, there remains considerable peril in access-buying. How much of a problem prosecutors will now face in bringing these cases is an open question.

In many corruption cases, some person’s (P’s) wish to have official A contact official B, to open up the channels of communication and advocacy, does not arise because B is somehow unavailable. B is or has been available, just not on the terms that the private party finds advantageous. B might rarely takes private meetings, requiring more formal submissions, or delegates much of the responsibility for face-to face encounters to staff. Or B has had the meeting with others present, and P would like a more private discussion. Or B has had the meeting, and P wants another, not confident that the first did the trick.

So P is looking for something he could not otherwise get, or so he believes, by having A ask B to provide the opportunity. Because B might not otherwise grant the audience, B is getting a message from A in many such cases—that A has a special interest in P, if not in P’s cause.

Depending on the facts, these circumstances, usually together with other facts, can constitute a trial question of exerted “pressure” from A on B, which the Court in McDonnell retained within its narrowed definition of “official act.” Neither P nor A are in the clear if P provided benefits to A in return for help with B.

The problem for P and A worsens if A says anything at all to B about the reasons for a meeting with P. The Court also includes within the scope of an official act providing advice that is intended to form a basis for B’s action. A could protect herself by saying, “just hear P out, then do what you think is best,” and leave it at that. P, of course, has not asked for only that and has not intended to pay for only that.

A can, of course, decline to go farther and put in a good work with B for P’s cause, but only if she is prepared to frustrate P’s expectations. Of course, A could lie to P about what she has done, which usually means other unattractive facts and behaviors all over the place, some of which will come back to haunt P and A.  And the McDonnell Court says that in these cases, even P and A’s agreement that A will exert pressure is enough to sustain a prosecution, regardless of whether A performs on the agreement. (Of course, if A is clear that she will contact B for access but no more–no pressure, no argument–that honesty could cost her the deal, or drive the “price” down.)

Once before a jury, these cases come complete with real personalities, convoluted fact patterns, cooperating witnesses, politicians and their staffs who have been careless in what they say and write, evasive behaviors, and regulators who dislike or distrust politicians’ interventions and take them almost by definition to be “pressure.” There is plenty for prosecutors to work with. Even with a jury instruction consistent with McDonnell standards, they will come away with more than a few victories in cases that involve apparent access-buying.

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