Last week, as many readers (at least those who follow corruption issues in the U.S.) are probably aware, the U.S. Supreme Court issued an order allowing former Virginia Governor Bob McDonnell to remain free on bail while his appeal is pending, a signal that the Supreme Court is likely to hear his case. As readers of the blog are also likely aware, I think that the appeals court that affirmed McDonnell’s bribery conviction decided correctly, meaning that the Supreme Court should either decline to hear the case, or should take it and affirm it. I really don’t think I have much more to say about the substance of the legal issues, and I wouldn’t bother posting about it again, except that an op-ed in last week’s Washington Post (by C. Boyden Gray, former White House counsel to President George H.W. Bush) got me so bloody angry that I just have to weigh in on this again, if only to point out the absurd consequences of the position advocated by Mr. Gray and others who argue that the conviction should be overturned.

The linchpin of Mr. Gray’s argument is that the alleged “official acts” that Governor McDonnell provided to private businessman Jonnie Williams (in exchange for lavish gifts, loans, and other tangible benefits) were “nothing more than speaking with aides and arranging a single meeting between an aide and [Mr. Williams],” and that criminalizing such routine conversations and meetings would be absurd. Described that way, McDonnell’s acts do indeed sound innocuous. But Mr. Gray’s characterization is so flagrantly misleading that there’s only one word to describe it, and it’s not a word I can use on a family blog.

What Mr. Gray describes as “talking to aides” was in fact the Governor of the State telling his aides (whom he had the power to fire or otherwise discipline) that he wanted and expected certain favorable actions taken with respect to a product (a dietary supplement called Anatobloc) produced by Mr. Williams’ company. In particular, the prosecution argued (and the jury apparently agreed) that Mr. Williams had given loans and gifts to Governor McDonnell as part of an express quid pro quo: in exchange these favors, the Governor agreed to use his influence to pressure other state officials (1) to sponsor an expensive study of Anatabloc at state medical institutions (thus sparing the company from the huge expense of conducting these studies on its own); (2) to allocate government grant money for the study of the active ingredient in Anatabloc (again, sparing the company the expense of performing these studies on its own); and (3) to include Anatabloc as a covered drug in Virginia’s health insurance plan for state employees (thus providing a big increase in demand for the product). This is not just the Governor “speaking with aides”; this is the Governor, in his position as Governor, pressuring subordinate government officials to take specific government actions to benefit a private party—and doing so in exchange for personal financial benefits provided by that party.

Nowhere in his lengthy op-ed does Mr. Gray deign to mention any of these details. Instead, he goes on about the threat posed by over-reaching, politically-motivated prosecutors, and the fact that the legal standard here is too vague–making the hyperbolic and patently absurd statement that this legal standard “threatens to turn the Constitution on its head” (and he then starts talking about First Amendment speech rights, which are not even implicated in the case). Yet Mr. Gray neglects to mention exactly what Governor McDonnell was alleged to have done. And he’s not alone. Indeed, one of the things that I find most frustrating about this controversy is that many of the people arguing on Governor McDonnell’s behalf–including people for whom I have great respect–assert that that the only thing Mr. Williams “purchased” was generalized “ingratiation and access.” But that’s just not true: Mr. Williams bribed Governor McDonnell to assist him in securing specific, identifiable government actions that would favor Mr. Williams’ company.

Once that’s cleared up, then really the question boils down to whether the fact that Governor McDonnell did not exercise his formal legal authority on Mr. Williams behalf–the Governor only told subordinate officials what he wanted/expected, but never actually ordered them to take specific action–means that the “official act” element of the bribery statute wasn’t satisfied. That position – which seems to be what Mr. Gray is advocating – strikes me as untenable. I don’t want to go over all the same ground I covered in my last post – and anyone who’s really interested in these issues can read the Fourth Circuit Court of Appeals’ well-reasoned opinion. But let’s boil down the position that Mr. Gray and others in his camp are making, shall we?

• The position seems to be that because “customary and settled practices” of the office is too vague a standard, there is no “official act,” and therefore no bribery offense, unless the public official exercises the formal, official powers of the office.
• So, on this view, it’s not a crime (and perhaps could not constitutionally be a crime) if a private party hands a senior public official (say, the governor) a suitcase full of cash and says, “I’m giving you this money because I’m currently under investigation for flagrant violations of health & safety laws, and in exchange for the cash I’m giving you, I’d like you to use your influence to make this investigation go away,” and the governor then calls up the head of the regulatory agency (whom the governor has the power to fire) and says, “Why are you harassing this poor private businessman? I’ll be really upset if you don’t shelve this investigation right away.” On Mr. Gray’s logic, unless I misunderstand him, there’s no crime here because all the hypothetical governor did was have a “conversation” with another public official.
• But anyone who knows anything about how government works in the U.S. (and I suspect elsewhere) knows that Chief Executives rarely have to issue formal orders to get things done. If all of the other ways they steer the ship of state (“conversations” and the like, no matter how specific) are not “official acts”, then we might as well declare that we’ve legalized bribery of Chief Executives.

So I do agree with Mr. Gray about one thing: There’s a huge amount at stake in the ongoing McDonnell saga. If Mr. Gray’s argument carries the day – and I dearly hope it doesn’t – bribery of sufficiently senior government officials will be effectively legalized, so long as the bribed officials are careful never to issue overt, legally binding orders to subordinates, but merely pressure them informally (but nonetheless effectively). I challenge anyone who thinks otherwise to articulate a limiting principle that wouldn’t also render McDonnell’s conduct—when described fully and accurately—a clear violation.