Is United States v. McDonnell going to be another Citizens Union disaster? The Supreme Court is poised to answer that question soon. For those persons who believe that public corruption, influence peddling, and pay-to-play are bad for democracy and bad for good government, they should be very worried. Indeed, the Court's answer may be as unsettling and devastating to honest government as its foray into campaign finance laws in Citizens Union in which the Court invited Big Money people to game the system by disguising conduct intended to corrupt public officials as routine political contributions.
That's the bleak sense one gets from studying the recent Supreme Court argument in United States v. McDonnell, an appeal by the ex-governor of Virginia from his bribery conviction for accepting lavish gifts from a political benefactor and bestowing upon him in return broad access to government assistance and significant support for his commercial interests. This type of conduct typically is called bribe receiving, and it is proved by showing, in the words of the bribery statute, that a public official "corruptly received anything of value personally in return for being influenced in the performance of any official act." The language is neither vague nor complex. It expresses the longstanding and fundamental principle that no government official high or low should receive any payment other than his salary for performing his public duties.
Governor McDonnell, as the proof at trial convincingly showed, violated this principle blatantly. A supplicant named Jonnie Williams, head of a dietary supplement company, repeatedly bestowed lavish gifts on the governor and his wife in return for the governor's help in promoting William's product, a supplement called Anatabloc. Here are examples of Williams' largesse: he gave McDonnell a $6,500 Rolex watch and use of his Ferrari on an expensive vacation, took the governor's wife to New York on a $20,000 shopping spree, gave the McDonnell's $120,000 in low-interest loans for their personal and business interests, took them on golf outings, and paid $15,000 in catering expenses for the McDonnell's daughter's wedding. McDonnell in return did the following: arranged meetings for Williams with state officials, permitted Williams to throw a luncheon at the governor's mansion to help him launch the new health product he was promoting, and allowed Williams to draw up the guest list for another expensive reception at the governor's mansion for health-care leaders.
The jury that convicted McDonnell had ample proof that these exchanges were a "quid pro quo," namely, Williams's gifts to the governor being the "quid," and McDonnell's reciprocating Williams the "quo." The jury believed Williams's testimony that McDonnell always knew why Williams was showering the McDonnell family with gifts. Also critical was the close timing of Williams's gifts and loans to the governor and the quick reciprocal efforts by McDonnell to help Williams and his company. This proof provides strong circumstantial evidence of prearrangement and coordination between Williams and McDonnell. Indeed, on one occasion, McDonnell directed a subordinate to meet with Williams on the same night he returned from a free vacation at Williams's lake house. On another occasion, six minutes after e-mailing Williams about a loan, McDonnell e-mailed an aide to review studies Williams wanted undertaken on Williams' products at public universities.
Against this overwhelming evidence of McDonnell's self-dealing and using the power of his office to benefit Williams, McDonnell's lawyer argued to the Supreme Court that McDonnell did not engage in "official" or governmental conduct when he helped Williams, and that to criminalize what McDonnell did would be to convert routine political conduct into corruption. He argued that showing gratitude to a constituent, and providing access to officials who could help constituents with their problems is not corruption. To criminalize such conduct would sweep too broadly, he claimed, and would make unlawful legitimate and commonplace favors for constituents. He even argued that such political favors were political speech protected by the First Amendment.
A legal brief from former high-ranking federal officials supporting McDonnell argued that if official activities such as helping a donor gain a friendly ear, or inviting a constituent to a cocktail reception attended by persons in the donor's field of interest were subject to criminal prosecution, then prosecutors would be empowered to indict any government official for routine political favors. Of course, neither McDonnell's lawyer nor the federal officials' brief effectively addresses whether "routine political favors" that were done in exchange for lavish personal gifts, as in the McDonnell case, could be and should be prosecuted
Several Justices, somewhat shockingly, appeared to buy McDonnell's argument. Justice Kennedy claimed that there is no workable standard to distinguish political favors from criminal acts. But of course that is not correct. Political favors typically do not involve exchanges in which something is given by a donor to benefit a public official personally, and in return for which the public official does something special for the donor, and where that exchange is animated by the public official's criminal intent to enrich himself and benefit the donor. Justice Breyer was troubled by the statutory term "influence" because, he claimed, officials frequently are influenced by constituents to do favors for them. But again, if that favor for a constituent has been influenced by the constituent bestowing lavish gifts on the official specifically intended to buy that influence, it's hard to see why that conduct should escape punishment. To be sure, the Court was properly concerned that prosecutors should not use their powers to stretch the criminal law beyond what Congress may have intended, as prosecutors have done in several recent cases that the Supreme Court struck down.
Good government observers fear that, as in the Citizen Union case, where the Court under the cloak of free speech principles broadened the ability of donors to make campaign contributions almost without limit, the Court in McDonnell may significantly narrow the reach of bribery and other anti-corruption laws under the self-same theory that political favors constitute free speech. Such a decision would send a terrible message to an already cynical public, effectively license freewheeling acts of corruption, and make it more difficult for law enforcement to do anything about it.