One of the most high-profile public corruption cases in the United States in the last couple of years (and alas, there’s some competition for that honor) is that of former Virginia Governor Bob McDonnell—a case that both Rick and Jordan have written insightfully about before. Governor McDonnell was convicted of violating federal anticorruption laws by accepting cash, loans, and lavish gifts from a local businessman, Jonnie Williams, in exchange for helping Mr. Williams secure research studies of his dietary supplement product at state institutions. Governor McDonnell assisted Mr. Williams’ efforts by arranging meetings, recommending that other state officials meet with Mr. Williams about his product (using language indicating that Governor McDonnell supported and encouraged use of the product), and encouraging state officials to arrange for the research studies sought by Mr. Williams.

Governor McDonnell appealed his conviction, and the U.S. Court of Appeals for the Fourth Circuit heard oral arguments in his appeal last week. (I can’t find a written transcript online yet, but you can listen to an audio recording of the argument here.) The governor’s primary argument on appeal is that he did not violate the relevant federal statutes because he did not perform any “official acts” on behalf of Mr. Williams. Interestingly, Governor McDonnell’s appeal has attracted support from a broad range of criminal law experts, including my Harvard Law School colleagues Professor (and retired Judge) Nancy Gertner and Professor Charles Ogletree. Judge Gertner and Professor Ogletree, along with Virginia Law School Professor John Jeffries, filed an amicus brief contending, in essence: (1) the things that Mr. Williams got from Governor McDonnell were not specific government decisions, but rather “access and ingratiation,” which do not count as “official acts,” and which the Supreme Court has said are not corrupt; (2) the broader definition of “official acts” accepted by the trial court (and reflected in its jury instructions) would render the anti-bribery statutes at issue so broad and vague as to violate constitutional Due Process rights.

Judge Gertner, Professor Ogletree, and Professor Jeffries are among the most distinguished criminal law experts in the United States. They have decades of experience practicing and writing about these issues at the highest levels, whereas I’m a comparative novice in this area, with zero practice experience. If they think one thing, and I think another, it would probably be a smart bet that they’re right and I’m wrong. All that said, I disagree quite strongly with the analysis in their brief.

A blog post is not the place to get into a detailed discussion of the nuances of the law, and this issue may seem rather parochial, especially to our non-American readers. But I actually think that the main problems with the Gertner-Ogletree-Jeffries (GOJ) brief stem from an important conceptual confusion that has implications well beyond this case, and perhaps outside of the U.S. as well. So with full recognition that I’m risking personal embarassment in advancing what might turn out to be a misguided critique, let me explain why I found the GOJ brief (and Governor McDonnell’s lawyer’s arguments along the same lines) unconvincing:

The starting point, at least to my mind, is the need to disentangle at least three separate questions we might need to ask when deciding whether an exchange between a private party and a public official amounts to an unlawful bribe. Let’s assume, to make things a bit simpler here, that the private party has given or offered tangible benefits to the public official (as was clearly true in the McDonnell case). The three questions we still need to answer, in order to figure out whether a bribe has taken place, are:

• First, was the benefit the public official offered to help the private party secure sufficiently specific and definite? That is, can we identify some specific act or decision that the public official provided (or offered to provide) in exchange for the payment, or did the payment secure only generalized and diffuse “access” or “good will”?
• Second, was the benefit the public official provided, or purported to be able to provide, sufficiently official? In other words, was the public official doing the favor in his or her public or private capacity?
• Third, was there a sufficiently clear and understood linkage between the payments offered by the private party and the favors offered by the public official? In other words, was there a quid pro quo? (Other anti-corruption statutes might not require a quid pro quo, but the bribery statutes typically do.)

These three requirements—specificity, official-ness, and quid pro quo—are easy to conflate, but they are not the same. It’s easy to imagine scenarios in which only one or two of the three criteria are satisfied. And indeed, all of the cases that the GOJ brief relies on for the proposition that providing benefits in exchange for “ingratiation and access” is not corruption involve cases where there was no quid pro quo and/or there was no specific, identifiable government decision that the private party was trying to influence.

Those problems are not issues in the McDonnell case, though. The evidence was sufficient to support an explicit quid pro quo (Mr. Williams appears to have provided Governor McDonnell gifts and favors specifically in exchange for the Governor assisting Mr. Williams’ business ventures). Moreover, what Mr. Williams sought was not (only) generalized “ingratiation and access,” but rather Governor McDonnell’s intervention in helping Mr. Williams secure specific forms of state support, in particular research studies on his dietary supplement product carried out by state institutions.

The only question, then, is whether Governor McDonnell’s actions supporting Mr. Williams were sufficiently “official.” The most intuitive argument that they were not is that Governor McDonnell never took or directed any exercise of the legal powers of the Governor’s office; his various actions to promote Mr. Williams’ product and to encourage state institutions to perform the sought-after studies took the form of conversations, arrangement of meetings, personal endorsements, and the like. But as Jordan pointed out in his earlier post, the law (at least in the Fourth Circuit) does not limit “official acts” to those that involve the exercise of the formal powers of the office. Rather, as the trial judge properly instructed the jury, “official” acts include “those actions that have been clearly established by settled practice as part of a public official’s position, even if the action was not taken pursuant to responsibilities explicitly assigned by law.” And anyone familiar with how policymaking works in the U.S. (or, I presume, most other countries), this is an eminently sensible position for the law to take: legislators and chief executives can exert enormous influence over other government departments simply by suggesting, cajoling, pressuring, haranguing, etc.—without ever exercising (or even explicitly threatening to exercise) their formal powers, even though those powers remain “the club behind the door.”

So my bottom line here is that when you get past the generalized rhetoric about how merely purchasing “ingratiation and access” is not bribery, it doesn’t seem to me that the Governor McDonnell’s arguments on appeal, endorsed in the GOJ brief, are at all compelling. In this case, all three of the essential elements of a quid pro quo bribe are met: There was (or a reasonable jury could have concluded that there was) an explicit quid pro quo, with Governor McDonnell (in exchange for lavish gifts and other favors) agreeing to exert influence over other public officials (forms of influence that are “clearly established by settled practice as part of [the governor’s] position”) to secure for Mr. Williams a specific action in a pending matter (most straightforwardly, the decision by state research institutions whether to conduct studies on Mr. Williams’ products). That’s a far cry from the sort of generalized favoritism shown to campaign donors and other benefactors that the Supreme Court has indicated do not count as criminal bribery.

One more point I feel like I need to address here is the GOJ brief’s assertion that the trial court’s interpretation of the federal bribery statute is unconstitutionally vague and overbroad. The GOJ brief asserts—hyperbolically—that the jury instructions “given by the district court would bring within the [anti-bribery] statutes significant routine and ordinary activities undertaken by political officials on a regular basis” making “all politicians vulnerable to arbitrary enforcement of the law[.]” Not so, for a couple of reasons. First, as noted above, the trial court’s statement of the law still requires that there be a quid pro quo, that the government action sought by the private party be sufficiently specific, and that the public official’s action be “clearly established by settled practice” as part of his or her official duties. Second, and more importantly, the trial court also (correctly) required the government to prove corrupt intent: according to the jury instruction proposed by Governor McDonnell, and accepted by the trial judge, if the defendant “believed in good faith that he or she was acting properly, even if he or she was mistaken in that belief … there would be no crime”; moreover, “the prosecution must prove … bad faith beyond a reasonable doubt.” It’s hard to square that significant limitation with the sweeping assertion that the government’s interpretation exposes all politicians to the risk of arbitrary prosecution.

To be clear, all of the above is my own view of what the right answer should be, not what the appeals court will actually do. The broader point, and really what I most want to emphasize here in taking issue with my colleagues’ position, is that we need to be careful not to extrapolate from the (controversial but plausible) idea that we shouldn’t criminalize efforts by parties to use donations and favors to secure public officials’ general goodwill, to the (implausible and destructive) idea that the sort of exchange that took place in the McDonnell case (on the reading of the facts most favorable to the government) shouldn’t count as criminal bribery.