For the purposes of this chapter, the term ‘‘scheme or artifice to defraud’’ includes a scheme or artifice to deprive another of the intangible right of honest services.

18 U.S.C. §1346[1]

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

18. U.S.C. §1951(a)[2]

[Last year the Supreme Court had some important things to say about how our Government conducts its business, and what’s legal and what isn’t. And, wonder of wonders, one of their decisions was unanimous! This is Larry again, and I’m talking about McDonnell v. United States[3], a case involving a former Governor of Virginia and his wife, and their dealings with a wealthy constituent.

I’m not going to speculate about Donald J. Trump, or any problems he or his Administration might have in the coming years; that would be unfair, and premature; and no doubt he has a team of fine lawyers to help him [and his people] avoid the obvious pitfalls. The same goes for Hillary Clinton. Her investigations are current, not potential, but she also has fine [and seasoned] lawyers on her side who most likely don’t need much help from the likes of us. But they do need to read this case.

What’s past is prologue[4], and legal quagmires aren’t made in a day. Usually they have a political history, and often a colorful one; the kind of history that wakes up the prosecutors and leaves them mumbling about extortion, theft of honest services and/or bribery. The McDonnell case had all of this and more, and in one fact pattern; and gave the Court an opportunity to show how these crimes fit together in the law. In law it’s always relevant to look backwards to predict the future, so my guess is that McDonnell is important, and we’ll be reading about it for years.

Again, hopefully this is a useless exercise with respect to Mr. Trump and Mrs. Clinton, and the future holds no prosecutions for either of them. But just in case, here are my thoughts.]

There, was that diplomatic enough? Probably not; most likely I’ve offended everybody; so let’s just move on, to a review of the McDonnell family’s joust with federal prosecutors.

The McDonnell Scandals

In 2014 Robert McDonnell, a former Virginia Governor and his wife were indicted on federal bribery charges.  The McDonnells had accepted $175,000 in loans, gifts, and other benefits from a Virginia businessman while McDonnell was in office.  The businessman was chief executive officer of a local company that had developed a nutritional supplement, and wanted the Governor’s help to persuade Virginia’s public universities to research and study the product.[5]  The company’s largess – involving gifts of a Rolex watch, a ball gown and numerous substantial loans – and the Governor’s reaction were well known;[6] and the Court was not impressed. At one point it characterized the goings-on as “tawdry.”[7]

But to the Court, the optics of the situation were not the real issue. The question was, had McDonnell or his wife committed an actual crime?

The Charges

Governor McDonnell was indicted for accepting payments, loans, gifts, and other things of value from a constituent in exchange for “performing official actions on an as-needed basis, as opportunities arose, to legitimize, promote, and obtain research studies for [his company’s] products.”  The charges included:

  • one count of conspiracy to commit honest services fraud,
  • three counts of honest services fraud[8],
  • one count of conspiracy to commit extortion,
  • six counts of extortion[9], and
  • two counts of making a false statement.

His wife was indicted for similar reasons.[10]

Honest Services & Extortion

The court found that the common denominator for the (i) honest services fraud and (ii) extortion charges was that the Governor and his wife allegedly accepted bribes. The litigants agreed with this in part, when they said “that they would define honest services fraud with reference to the federal bribery statute.”[11] Moreover, to the Court, at least, it was clear that extortion also may include “taking a bribe.”[12] So while bribery was not specifically charged against McDonnell or his wife, the federal bribery statute became the standard against which their conduct was measured.

The Government’s view was that McDonnell had committed at least five “official acts.”  These included “arranging meetings” for his constituent with other Virginia officials, “hosting” events at the Governor’s Mansion, and “contacting other government officials” concerning studies of the constituent’s product.  “The Government also argued more broadly that these activities constituted “official action” because they related to Virginia business development, a priority of Governor McDonnell’s administration.”[13]

McDonnell disagreed.  “Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official—without more—does not count as an ‘official act.’”[14]

The bribery statute, 18 U.S.C. §201,  “makes it a crime for ‘a public official or person selected to be a public official, directly or indirectly, corruptly’ to demand, seek, receive, accept, or agree ‘to receive or accept anything of value in return for being ‘influenced in the performance of any official act.’”[15] An “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”[16]

What’s An Official Act?

That’s an interesting definition, but what does it mean? Well, that depends on which part of the sentence you read. If you decide the important part of the definition is that an “official act” is “any decision or action on any question … before any public official” you might conclude that just about everything he or she does qualifies as such. And basically that was the Government’s position in McDonnell. “According to the Government, ‘Congress used intentionally broad language’ to embrace ‘any decision or action, on any question or matter, that may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity.’”[17]

No one questioned that the McDonnells had accepted things of value – $175 thousand worth – from their businessman/friend. The question was, did they perform [or promise to perform] “official acts” in return. Specifically, the Government argued “arranging a meeting, contacting another public official, or hosting an event” were, indeed, “official acts.”

The Supreme Court didn’t agree:

In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee.  It must also be something specific and focused that is “pending” or “may by law be brought” before a public official.[18]

The Court called this a “more bounded interpretation” than the one offered by the Government, and said that’s what was contemplated by the statute. It reached this conclusion by a simple process of statutory interpretation.[19] [Actually, it wasn’t that simple, but we’re going to simplify it for the sake of this discussion.] Basically the Court said that the specific examples given by the statute pretty much indicated that officials were not to solicit or take bribes when formally exercising government power. A judge shouldn’t ask for or take money, etc. when deciding a case, a regulator when publishing a regulation, and so forth.

Drawing the Line

The Court gives examples of what’s permitted and what isn’t. Pay attention, all of you criminal lawyers!

Prohibited

  • A “decision or action to initiate a research study—or a decision or action on a qualifying step, such as narrowing down the list of potential research topics— [qualifies] as an “official act.”
  • A public official may also make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy” by using his official position to exert pressure on another official to perform an “official act.”
  • [I]f a public official uses his official position to provide advice to another official, knowing or intending that such advice will form the basis for an “official act” by another official, that too can qualify as a decision or action …”.[20]
  • “[A] public official is not required to actually make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy”; it is enough that the official agree to do so. … The agreement need not be explicit, and the public official need not specify the means that he will use to perform his end of the bargain. Nor must the public official in fact intend to perform the ‘official act,’ so long as he agrees to do so.”[21]

Permitted

  • “Setting up a meeting, hosting an event, or calling an official (or agreeing to do so) merely to talk about a research study or to gather additional information [is not] a decision or action on the pending question of whether to initiate the study.”[22]
  • “Simply expressing support for the research study at a meeting, event, or call—or sending a subordinate to such a meeting, event, or call— … does not qualify as a decision or action on the study, as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an “official act.”[23]

Conclusion

Well, that took more time than I thought. I really don’t want to make this any longer, but I should add that McDonnell involved more than a simple interpretation of existing law. The Supreme Court, and by that I mean all the justices, thought that prosecutors had so stretched the law that it would prohibit just about everything politicians do.

Section 201 prohibits quid pro quo corruption—the exchange of a thing of value for an “official act.”  In the Government’s view, nearly anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and nearly anything a public official does—from arranging a meeting to inviting a guest to an event— counts as a quo.[24]

There’s really no reason to accept that view. It’s overly vague, doesn’t properly warn folks about when they are violating the law, may lead to “overzealous” prosecutions, and allows the federal government to intrude too deeply in matters that probably should be reserved to the States.[25] After all, Governor McDonnell was the Governor of Virginia, not a federal employee.

I’m not a real fan of the way things run these days, or the way our politicians behave, but I think the Court’s right about this.

Thanks for reading all these words.

[1] This was added to the law in 1988. See Pub. L. 100–690, title VII, §7603(a) (Nov. 18, 1988), 102 Stat. 4508. What law was it added to?  Why it was Ch. 63 of Title 18, dealing with Mail Fraud and Other Fraud Offenses. You can get the official [2015] version of Ch. 63 from the “Government Publishing [formerly, “Printing] Office,” at https://www.gpo.gov/fdsys/pkg/USCODE-2015-title18/pdf/USCODE-2015-title18-partI-chap63.pdf

[2] This is from Ch. 95 of Title 18, dealing with Racketeering. You can get the official [2015] version of Ch. 95 from the “Government Publishing [formerly, “Printing] Office,” at https://www.gpo.gov/fdsys/pkg/USCODE-2015-title18/pdf/USCODE-2015-title18-partI-chap95.pdf

[3] 579 U.S.  ___ (2016). The official printed, bound version of an opinion is the best evidence of its contents. “Only the printed bound volumes of the United States Reports contain the final, official opinions of the Supreme Court of the United States. In case of discrepancies between a bound volume and the materials included here–or any other version of the same materials, whether print or electronic, official or unofficial–the printed bound volume controls.” So says the Supreme Court, at https://www.supremecourt.gov/opinions/boundvolumes.aspx . Unfortunately the bound version doesn’t exist yet, so today you and I must rely on the “slip opinion,” the Court released when it announced its decision. That’s available at https://www.supremecourt.gov/opinions/15pdf/15-474_ljgm.pdf . We’ll cite it as McDonnell, slip op. at p.  __.

[4] See Oxford Dictionary of Quotations (6th edition, 2004) at William Shakespeare, p. __, n. __.  The quote is from The Tempest, Act 2, scene 1. For a short discussion, see the entry on “past is prologue” in Wikipedia, at https://en.wikipedia.org/wiki/What%27s_past_is_prologue

[5] See McDonnell, slip op. at p. 1.

[6] See, e.g., USA Today, Camia & Heath, Ex-Va. Governor McDonnell: ‘I did nothing illegal’ (January 21, 2014), available at  http://www.usatoday.com/story/news/politics/2014/01/21/bob-mcdonnell-gifts-virginia-governor-indicted/4723979/

[7] See McDonnell, slip op. at p. 28. “There is no doubt that this case is distasteful; it may be worse than that.  But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns.”

[8] See 18 U. S. C. §§1343, 1346, 1349.

[9] See 18 U. S. C. § 1951(a). Section 1951 falls under Chapter 95, Racketeering; section 1951 is entitled “Interference with commerce by threats or violence.”

[10] See McDonnell, slip op. at p. 8.

[11] Id., citing the federal bribery statute, 18 U. S. C. §201.

[12] See McDonnell, slip op. at p. 9, citing Skilling v. United States, 561 U. S. 358, 404 (2010) (honest services fraud);  Evans v. United States, 504 U. S. 255, 260, 269 (1992) (extortion includes “taking a bribe”).

[13] See McDonnell, slip op. at p. 2.

[14] Id.

[15] Id., citing 18 U.S.C. §201(b)(2).

[16] See McDonnell, slip op. at p. 9.

[17] See McDonnell, slip op. at p. 13.

[18] See McDonnell, slip op. at p. 21-22

[19] See McDonnell, slip op. at p. 15 – 16: “Under the familiar interpretive canon noscitur a sociis, ‘a word is known by the company it keeps.’  While ‘not an inescapable rule,’ this canon “’s often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress.’”

[20] See McDonnell, slip op. at p. 19

[21] Id.

[22] See McDonnell, slip op. at p. 20.

[23] See McDonnell, slip op. at p. 20.

[24] See McDonnell, slip op. at p. 23.

[25] See McDonnell, slip op. at p. 23 – 24.

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