WASHINGTON -- Rarely, if ever, does a felon appealing his federal conviction get to set foot inside the U.S. Supreme Court.
Bob McDonnell, the former governor of Virginia, broke that general rule on Wednesday as he sat in the courtroom for oral arguments in a case that could not only reverse his multiple convictions on corruption charges, but also redefine what counts as government corruption under federal law.
Luck has been on his side since the outset of his appeal. And now, even without the late Justice Antonin Scalia on the bench, McDonnell may be able to convince a majority of the justices that he didn't do anything wrong -- and that he shouldn't spend two years in prison for accepting lavish gifts and loans from a businessman while he was governor.
This and other acts, his lawyer argued, is conduct that politicians engage in on a daily basis. Should the government get to punish every single instance of it?
"Every day of the week, politicians write letters on behalf of citizens," said a concerned Justice Stephen Breyer. He took the lead in searching for a bright line between the kind of conduct that qualifies as true corruption and the kind that doesn't.
Are those everyday acts by politicians, as a whole, "a crime?" Breyer asked, naturally informed by his lifetime of experience in all three branches of the federal government. "My goodness."
Breyer, and maybe the court as a whole, may have an interest in issuing an opinion as narrow as possible -- one that upholds the government's power to prosecute actual corruption, but also one that brings clarity to the law as written, which seems to cast a wide net over acts that in McDonnell's view are ordinary politics.
Because the McDonnell case involves the interpretation of federal anti-corruption laws, which use the word "official acts," the Supreme Court's chief role is determining exactly what that means.
If the court comes up with too broad a reading of that phrase, prosecutors could have virtually limitless power to go after even mundane activities -- like a lawmaker who makes a phone call on behalf of her constituent, or an official who arranges a meeting with donors to hear their concerns. But too narrow an interpretation may render the law toothless and make it harder to go after subtler but no less egregious acts of corruption.
The justices pondered long and hard at what constitutes an illegal "quid pro quo" -- donations and courtesies people extend to elected officials in exchange for political favors. Is it the size of the "quid" that matters for prosecutors or the "quo" that politicians offer in return?
"What's the lower limit, in the government's opinion, for the quid?" asked Breyer. He wondered if $10,000, or perhaps "an evening of trout fishing," might be sufficient for the kind of gift that might lead to a criminal prosecution.
Justice Samuel Alito, for his part, noted that "gaining access by making campaign contributions is an everyday occurrence," which indeed may be "a bad thing." But this, he said, is "very widespread," suggesting that in itself it may not be criminal.
Chief Justice John Roberts pointed to a legal brief filed by a broad coalition of government lawyers under both Republican and Democratic presidents, all of whom sided with McDonnell and cautioned against the pitfalls of an expansive definition of "official acts" -- which they said might "cripple" elected officials' role in a representative democracy.
"I think it's extraordinary that those people agree on anything," Roberts mused, to laughter from the courtroom. "To agree on something as sensitive as this and to be willing to put their names on something that says this cannot be prosecuted conduct -- I think it's extraordinary."
McDonnell's acts didn't involve campaign donations in the traditional sense. Instead, what he and his wife, Maureen, received were lavish gifts, dinners and shopping sprees from Jonnie Williams, a pharmaceutical impresario who wanted to seek research assistance and approval from the state for his company's dietary supplements.
The federal government's lawyer, Michael Dreeben, argued that Williams' niceties -- and the governor's tactics -- in turn led to a subsequent indictment and public trial where a jury duly convicted him.
Justice Sonia Sotomayor, putting McDonnell's acts in stark terms, pointed to evidence that there were public servants at Virginia research institutions who "felt pressured" by the governor's involvement with Williams and his business interests.
"They were honorable people, obviously," Sotomayor said. "But the point is, what do we do with the fact that they perceived that he was trying to influence them?"
She was one of the few justices who seemed sympathetic to the government's side. Her colleagues, by and large, appeared to go the other way.
"Where can we find, in your view, the definition of an 'official act?'" asked Justice Anthony Kennedy, later adding that he failed to see "the limiting principle" for the government's theory for carrying out these prosecutions.
“Now, suddenly, to give that kind of power to a criminal prosecutor, who is virtually uncontrollable, is dangerous in the separation of powers.”
- Justice Stephen Breyer
Breyer seemed troubled by the implication that the government wants to remove all limitations on the "quo" side -- what officials do -- and what that may mean for future prosecutions.
"My problem is the criminal law as the weapon to cure" dishonest behavior, Breyer said. He warned that stretching the law's reach will mean that "political figures will not know what they're supposed to do and what they're not supposed to do."
The Constitution, in principle, guards against laws that are too vague. But Breyer also worried about another fundamental constitutional problem: an unbound Department of Justice as “the ultimate arbiter of how public officials are behaving in the United States — state, local, and national.”
"Now, suddenly, to give that kind of power to a criminal prosecutor, who is virtually uncontrollable, is dangerous in the separation of powers," he said.
At a time when the Supreme Court is caught in the crossfire of politics over the confirmation battle to replace Scalia, maybe its members will heed Breyer's words and find a way to rule as sensibly as possible -- while understanding that the public doesn't take kindly to politicians who abuse the power of their office.
A decision in McDonnell v. United States is expected sometime before the end of June.