The McDonnell Reversal And Its Implications
/On Monday the Supreme Court unanimously reversed the "honest services fraud" and "Hobbs Act extortion" convictions of Bob McDonnell, former governor of Virginia. Please recall that I predicted this result on May 3. (OK, I admit that I only made the prediction after the oral argument at the Supreme Court, where justices from both the liberal and conservative wings raked the government's lawyer over the coals. But I did note that the McDonnell prosecution was "one of the flimsiest" of many flimsy federal phony prosecutions of recent years.)
The Supreme Court's opinion is here. It's unanimous, written by Chief Justice Roberts, with no concurrences. Mostly it's a lot of technical parsing of the meaning of the term "official act" as that term appears in the federal bribery statute, 18 U.S.C. Section 201. But, you say, McDonnell wasn't even indicted or convicted under that statute and the term "official act" does not appear in the statutes under which he was convicted; how is this even relevant? That's just an illustration of the sad fact that today you can't get any idea what you can and can't do in this country without reading all the Supreme Court opinions. If you had read the Skilling opinion of 2010, you would know that the Supremes saved the "honest services fraud" statute from being declared void for vagueness by importing into it the restrictions of the bribery statute, 18 U.S.C. Section 201. It's more than a little odd, because the bribery statute only applies to bribery of federal officials, and McDonnell was a state official.
Whatever. The government accepted that it had to prove an "official act" done as a quid pro quo for some kind of payment. The government's allegations were that, in return for various personal gifts from a contributor (amounting in total to some $175,000), McDonnell agreed to set up meetings with government officials (executives of the state university), hosted a meeting, and followed up with those officials to urge them to make a decision on the contributor's requests. But ultimately the UVA officials declined to do what the contributor was requesting. The "official acts" were setting up and hosting the meetings and following up to get a decision. After extensive parsing of the term "official act," Roberts finds that merely setting up meetings and following up don't meet the test. Here's how he describes the fundamental problem:
[C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns. . . .
Or to put it another way, if McDonnell was guilty of "honest services fraud," then literally every other elected politician in the country is equally guilty. Is there actually a single sitting politician in the country who has not agreed to set up a meeting or follow up with a bureaucrat for a decision on behalf of some campaign contributor? Sure, McDonnell's conduct was rather "tawdry" (to use Justice Roberts' term), particularly in the size of the gifts and the fact that they were personal (as opposed to contributions to the campaign). But the statute doesn't make guilt or innocence turn on some visceral reaction to the "tawdriness" of the conduct or the size of the donation; if what McDonnell did constituted "official acts," then he would have been equally guilty if all he got was a $1000 campaign contribution. And really, even at $175,000, he was small time compared, for example, to the New York politicians who take millions of dollars annually from the teachers unions in return for favorable organizing legislation, keeping contracts in force after expiration, suppressing charter schools, making it impossible to fire a teacher, and so on. Why aren't those New York pols prosecuted? (Hint: McDonnell was a Republican in a swing state, the prosecutors were working for Barack Obama, and the prosecution helped to swing the governorship of Virginia to the Democrats; in New York the teachers unions contribute almost exclusively to the Democrats, and the relevant prosecutors are all Democrats.)
Which brings us to the case of Dean Skelos, recently (until his federal indictment on bribery and extortion charges) Majority Leader of the New York State Senate. At the time of his indictment in May 2015 I called the charges against Skelos "remarkably thin." He was accused of leaning on some of his contributors to give some employment to his son, and at least a couple of them did give him at least some employment. Skelos was convicted in December and currently remains free on bail pending his appeal. His lawyers did a good job preserving the "official act" issue for appeal.
Looking at the indictment (not available online without a subscription as far as I can find) and the decision of the District Court denying a motion to dismiss the indictment, I can say that much of the guts of the conviction have now been undermined. However, I can't confidently predict a full reversal. In her decision on the motion to dismiss, District Judge Wood relies at multiple points on the Fourth Circuit's decision in McDonnell, now unanimously reversed. Then there is this from her opinion on that motion:
[C]ourts interpreting "official acts" in the context of bribery and extortion have held that "official acts" encompasses such conduct as: . . . taking steps to promote and ensure the success of a business venture, including corresponding with officials and investors who might be helpful, scheduling and conducting meetings, and seeking to secure contracts on behalf of the business . . . .
I'd say that's now dead wrong under McDonnell. The single most important thing that Skelos was alleged to have done was to lean on his friends with the Nassau County legislature to approve a contract with a company that employed his son. But Skelos had no position of any kind with Nassau County. The Supreme Court's decision does not explicitly address how such a thing could constitute an "official act" of Skelos, but really, how could it under Roberts' parsing of that term?
But there is an allegation in the indictment that Skelos threatened to block legislation favorable to one or more of the entities that he wanted to employ his son. I can't say how that one came out in the evidence without reading the trial transcript, which I don't have. So there is at least some chance that some part of the Skelos conviction may survive.
For what it's worth, I don't think that the conviction of Sheldon Silver is threatened by this decision.
To all those wringing their hands over the fact that conviction of corrupt pols has now become that much harder, I say, it's no solution to make the conduct of every politician criminal and then leave it in the hands of supposedly fair and neutral prosecutors to only go after the really bad guys. The prosecutors are not fair and neutral, and if given discretion to convict essentially anyone they want, they will use that discretion to convict politicians of the opposite party holding swing positions so that a governorship or a legislative body can be swung to the political party of the prosecutor -- in other words, exactly what has happened in the cases of McDonnell and Skelos. Do you really want to do something about corruption in government? There is only one solution: shrink the government.