An (Un)Appealing Argument: Why Bob McDonnell Shouldn’t Get His Hopes Up

If former Virginia Governor Robert McDonnell is certain of anything, it’s that he never actually abused the powers of his office for the benefit of Jonnie Williams. Forget about the $170,000 or so in loans and gifts Williams extended to Virginia’s first family; “McDonnell’s last line of defense,” as Rick has noted, “[is] that the favors he did for Williams were not part of his official duties as governor.”  In other words, McDonnell believes that his influence peddling on behalf of Williams — in return for Williams’s financial “assistance” — did not amount to “the performance of an official act,” as required by federal bribery law.

Unfortunately for McDonnell, the judge overseeing his trial disagreed and refused to instruct the jury — as McDonnell had requested — that “merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, ‘official acts.’”  Instead, Judge Spencer adopted the prosecution’s understanding that federal bribery law encompasses quid pro quo arrangements involving the performance of either (1) a public official’s statutory duties or (2) those settled practices “‘that a public official customarily performs’ even if they are not prescribed in law.”  Not to be deterred, the former Governor thinks he has a strong case for challenging this instruction on appeal.  Here’s why he’s wrong.

As the Fourth Circuit — which will hear McDonnell’s appeal — has noted, the Supreme Court decided in 1914 that the term “official act” in federal bribery law encompasses “duties not completely defined by written rules” but that are nonetheless “clearly established by settled practice.”  What exactly does this mean? Well, it means that McDonnell is on the hook for any action that (1) he took on behalf of Williams, (2) in exchange for Williams’s financial largesse, and that (3) was customary of his gubernatorial office and (4) related to “any question, matter, cause, suit, proceeding or controversy” actually or potentially pending before his office.

Fortunately for the government, each of the four factors maps well onto McDonnell’s reported conduct:

  1. McDonnell undoubtedly acted for Williams’s benefit when he promoted the latter’s company and products;
  2. Substantial evidence corroborated a close temporal connection between instances of Williams’s largesse and McDonnell’s actions promoting Williams’s company;
  3. Prosecution witnesses gave lengthy testimony arguing that McDonnell’s actions touched upon duties customary of his office, including hosting events for constituents and industry, directing the priorities of state executive officials, and asking state officials to intervene in research decisions being made by the state’s public universities; and
  4. McDonnell’s actions apparently related to several matters — including research by state institutions, state employee health insurance plans, and product licensing issues — that were actually or potentially pending before his office. For example, it is hard to see how McDonnell’s decision to ask state human resources personnel — during an official meeting — whether the health insurance plan for state employees could cover Williams’s pill did not relate to a matter pending before his office.

Notwithstanding this precedent, McDonnell has offered up a much narrower reading of federal bribery law, one that restricts “official actions” to those core functions of the pertinent public office that relate to the exercise of decisional authority by the government, including the award of state contracts, conferral of economic incentives, or appointment of state officers. In McDonnell’s view, merely lending the weight of the Governor’s Office to a constituent businessman-in-need did not, without more, amount to an unlawful “quid” given for Williams’s “quo”.  In support, McDonnell turns to cases such as United States v. Sun-Diamond Growers and Valdes v. United States, which he insists make clear that there are certain acts — like public appearances, speeches, or moonlighting with government resources — that, while official in some sense, are not “official acts” within the meaning of the federal bribery statute.

To a limited extent, McDonnell is correct: the Supreme Court made clear in Sun-Diamond that not every action taken by a public servant in his or her official capacity falls within the scope of the statute. That is why it isn’t illegal — under either the federal bribery statute or its lesser-included cousin, the illegal gratuity statute — for a politician to accept gifts given purely in recognition of his or her office or as thanks for speaking to an industry group.

At the end of the day, though, McDonnell’s broader argument is likely to be viewed with suspicion by the panel that takes up his appeal.  The primary reason is that the Fourth Circuit’s 2012 decision affirming the conviction of former Congressman William Jefferson seems largely on point.  There the court upheld Jefferson’s conviction for receiving bribes in exchange for performing constituent services (a “settled practice” of a congressman) related to trade in Africa (matters that were, broadly speaking, pending before Jefferson in given his traditional role in promoting U.S. trade with Africa). If McDonnell really thinks he has a case to make, he’ll surely have to explain how the Fourth Circuit could fault Jefferson (for scheduling meetings and vouching for the bribers’ business bona fides) but nevertheless let the former Governor off the hook.  That’s a rather unenviable burden to bear, and if I were in his shoes, I wouldn’t hold my breath.

5 thoughts on “An (Un)Appealing Argument: Why Bob McDonnell Shouldn’t Get His Hopes Up

  1. I’m very much in agreement with your assessment. I realize you’re restricting your focus in this post to the positive/predictive question of how the 4th Circuit is likely to view McDonnell’s argument, but I’d push further and say not only that the court likely _will_ reject McDonnell’s interpretation, but also that the court _should_ reject his position. While I’m sympathetic to the idea that there has to be some limitation on the scope of the “official act” category (lest any nice thing that a public official does in a purely private capacity, for some friend or associate who has ever provided any gift or favor to that official), it seems to me that construing the category broadly is more consistent with the language and purposes of the federal bribery and illegal gratuities statutes.

    I do think it might also be useful to distinguish two related but separate issues about the meaning of “official act,” both of which come up in the Sun-Diamond case. The first (which emphasizes the word “act”) is whether an “official act,” as that term is used in the relevant statutes, applies only to a specific, identifiable act, or whether it can encompass a generally favorable disposition toward the giver of the gift/bribe. The second (which emphasizes the word “official”) is the McDonnell argument that you focus on in the post: whether an “official act” only includes formal exercise of the power of the office, or whether it encompasses a broader category of activities that holders of the office customarily perform as part of their public role.

    Though Sun-Diamond does touch on the latter issue, the main focus of that case is on the former question — and the Court there held (unanimously) that under the unlawful gratuities statute, “official act” refers to a specific act. That’s why it’s not a violation of the (criminal) gratuities statute for an industry group to give fancy presidents to a federal official, in the hopes of cultivating generalized “goodwill,” but without any connection to a specific action. Zephyr Teachout singles out that aspect of Sun-Diamond for criticism in her recently-published book — but I’m not sure I agree with her analysis of the law (though I tend to favor her views on the policy).

    On the latter issue, I think the Fourth Circuit has it right, and I don’t see anything in Sun-Diamond to the contrary.

    • Matthew,

      Not to pound anymore on Professor Teachout, but her critique of Sun-Diamond misses the Court’s point entirely. To show that a gift to a federal official violated the illegal gratuity statute, the Court held that “the Government must prove a link between a thing of value conferred upon a public official and a specific ‘official act’ for or because of which it was given.” Her complaint is that the ruling narrows the law’s reach.

      This is in fact precisely what the Court said it was doing. The reason it did was that the interpretation of the illegal gratuity statute urged by both the Independent Prosecutor (the case arose when special prosecutors were free of Executive oversight) and the Solicitor General would have in effect outlawed all or most all gifts to federal officials. As Justice Scalia explained in his opinion for a unanimous Court:

      “The Independent Counsel asserts that ‘[the gratuity statute] reaches any effort to buy favor or generalized goodwill from an official who either has been, is, or may at some unknown, unspecified later time, be in a position to act favorably to the giver’s interests’ (citation omitted). The Solicitor General contends that [the law] requires only a showing that a ‘gift was motivated, at least in part, by the recipient’s capacity to exercise governmental power or influence in the donor’s favor. . . .’”

      Either interpretation would have effectively banned all gifts to the President, and many gifts of de minimis value to Cabinet Secretaries. The examples the Court used were “replica jerseys given [to the President] by championship teams . . . during ceremonial White House visits” and a “high school principal’s gift of a school baseball cap to the Secretary of Education. . . on the occasion of [his or her] visit to the school.”

      The Court conceded that the illegal gratuity law could be construed, on an albeit tortured reading, to reach the result advanced by the Independent Counsel and the Solicitor General. But beyond the damage such a construction would do to the English language, it found a second, equally compelling reason to reject such an interpretation in the United States Code and the Code of Federal Regulations. Both littered with provisions stating who may give a gift to whom, of how much, when, and with what disclosure requirements. Taken together this regulatory complex, again in Justice Scalia’s opinion:

      “demonstrate that this is an area where precisely targeted prohibitions are commonplace, and where more general prohibitions have been qualified by numerous exceptions. Given that reality, a statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.”

      I write at some length for two reasons. One, to help to purge memories of parsing the federal gift rules when asked by potential donors or recipients whether a particular item, generally of small value, could be accepted. My favorite (?) memory is writing an opinion whether a firm could give a basket of fruit to a couple, one of whom was a senior employee of the Executive Branch and the other an elected Member of Congress. After several pages, and several thousand dollars of the client’s money, I concluded that he could eat the fruit but the company risked a fine or jail sentence if she had a bite.

      The real point is once policymakers decide not to ban all gifts from anyone of any amount to an officeholder, determining who can give what and when becomes exceedingly complex.

  2. Hmmm. When the wrong charges are made and the wrong questions are consistently raised a reasonable man is left to wonder what is the real game in play.

    For a violation of a statutory crime to be rightly charged the full sieve of the criminal law must pass ALL necessary particulars of the charge (including criminal intent) at least to the degree of probable cause if the prosecuting officer is to rightly put the indictment before a grand jury.
    And the Judge, in order not to VA18.2-111 “Embezzle” the true law and VA18.2-481(5) “Resist the execution of the law under the color of its authority must direct the trial to truly address that sieve as needed to see if ALL necessary tests of that sieve are established beyond a reasonable doubt.
    My rather dusty recollection of the actual charges is the full sieve could not be met – even though McDonnell fails the ‘smell test’ which over the centuries has given common law and statutory law most of its specification.

    While it would be widely recognized as a travesty to should the court declare McDonnell ‘Not Guilty’ it would be very reasonable for the court to declare a mistrial so that jeopardy would not have attached.
    Then a proper trial could be made with the proper charges.

    Look at those charges and you will see why you are being mislead with the wrong questions.

  3. Jordan, this is really interesting! Given that part of the test is not just core official actions but if he threw around “the weight of the office” It makes me wonder about whether corruption (conceptually, not legally) should be applied more broadly to “formers” — those who used to be in elected office, were defeated or retired, and are notorious for then attempting to cash in in exchange for some of the weight they used to have when in office. While it’s most common to hear about them lobbying in exchange for salary, I’m sure there are plenty of (under the table) McDonnell type deals out there for formers who, to my knowledge, wouldn’t fall under any of these statutes.

    • Sarah, I think you raise a really interesting point here and I agree that this practice (particularly in the arena of lobbying, as you note) is one that it would be beneficial to attempt to curb either by recasting these types of deals as a form of corruption or adopting other mechanisms to deter this kind of behavior. However, while I think this kind of ‘cashing in’ is problematic, I’m not sure if it’s possible to attach the same kind of significance to former politicians lending their weight to a particular cause. In such situations, any ‘weight’ they would be able to lend would seem to fall within two categories: 1) their personal popularity or 2) their expertise and personal connection to political players who are still in power. The former does not seem noticeably different from hiring a celebrity to endorse a particular cause. As for the latter, I’m not sure if I’m comfortable saying that the expertise and personal contacts that someone built during the course of a job (albeit a particularly important one in this case) should not be available to them after their term has expired. That being said, I do think it’s important that we try and take steps to address this practice, I’m just not sure if a corruption framework necessarily moves us closer to curbing this type of behavior.

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