I’m a bit late to the party, but I thought I should perhaps say something about last month’s unanimous U.S. Supreme Court decision to vacate the conviction of former Virginia governor Bob McDonnell, on the grounds that the trial judge had not properly instructed the jury on the meaning and scope of the term “official act” in the relevant anti-bribery statutes. (As readers of this blog are likely aware, I thought that McDonnell’s conviction ought to be affirmed. This is not the first time the U.S. Supreme Court’s views differ from my own, nor will it be the last.) There has already been a spate of helpful commentary on the decision—including a succinct summary of the opinion’s likely impact from the Center for the Advancement of Public Integrity, and an insightful commentary from Daniel Richman and Jennifer Rodgers on the NYU Compliance & Enforcement Blog (a new blog that’s worth following). I’m not sure I have all that much new to add, but let me throw in my two cents.

While it would have been satisfying to see McDonnell get his just desserts, what happens to McDonnell himself is less important that the broader impact of the decision on the enforcement of anti-bribery laws more generally. So what does the Supreme Court’s opinion portend for anti-bribery enforcement in the U.S. going forward? After reading the opinion, my reaction is mixed. On the one hand, the decision rests on fairly narrow grounds, which might well cabin its impact on the mine-run of federal bribery prosecutions. On the other hand, the Court’s opinion both bespeaks an unrealistic view of how senior politicians exert influence over policy, and places undue weight on concerns about chilling (allegedly) desirable conduct.

First, a quick and somewhat simplified recap of the facts of the case as presented on appeal: A Virginia businessman, Jonnie Williams, wanted state medical institutions to run expensive tests on his company’s products. He gave Governor McDonnell $175,000 worth of loans and lavish gifts. In exchange, Governor McDonnell took certain steps to assist Mr. Williams in getting what he wanted. These steps included speaking with subordinates, hosting events, and arranging meetings. One area of factual dispute—and this turns out to be quite important—was the nature of the interaction between Governor McDonnell and his subordinates, in particular whether the governor ever pressured them to take favorable actions on Mr. Williams’ behalf, or whether he merely spoke to them and arranged meetings, without applying additional pressure to take a specific decision.

As for the relevant legal question, again simplifying a bit, the laws under which McDonnell was charged require the government to prove three things: First, that Mr. Williams offered the governor something of value; second, that there was a quid pro quo, in which Governor McDonnell promised to take certain actions in exchange for the benefits that Mr. Williams provided; and third, that the actions that the Governor promised were “official acts.” The first element is uncontested. Importantly, the second element–the existence of a quid pro quo–though hotly contested earlier in the proceedings, was not the issue on appeal. At this stage in the process, the courts are (or at least should be) assuming that there was a quid pro quo. The case therefore came down to the third element: whether the things that McDonnell promised to do for Williams count as “official acts.” Although the jury convicted McDonnell and the Court of Appeals affirmed, the Supreme Court vacated the conviction on the grounds that the trial judge did not properly instruct the jury on the meaning of the term “official act.”

What to make of this? Let’s start with the glass-half-full view:

In one of my earlier posts on this case, I castigated some of McDonnell’s supporters for staking out the position that none of the things that McDonnell was alleged to have done could possibly constitute “official acts,” because he never exercised any of the formal legal powers of the governor’s office on Mr. Williams’ behalf. On that view, even if the Governor pressured his subordinates to direct state institutions to help Mr. Williams business—as the evidence, on my reading, strongly suggested—that could not be a violation of federal anti-bribery laws, even if there was an express quid pro quo. As I argued in the earlier post, that position, if accepted, would effectively legalize bribery of senior officials, particularly in the executive branch. After all, senior officials usually do not have to order their subordinates to take particular action; an indication that the official “would like to see” certain action taken is typically enough for the subordinates to get the message (though in McDonnell’s case, his subordinates, to their credit, recognized that there was something dodgy going on and resisted).

The Supreme Court did not rely on such a constricted view of the meaning of “official act.” Indeed, the Court went out of its way to emphasize that a public official can be convicted under the relevant statutes if he “us[es] his official position to exert pressure on another official to perform an ‘official act[.]’” The Court further acknowledged that some of the allegations against Governor McDonnell would fall into that category, and that a properly instructed jury might have convicted the governor on that basis. The problem, according to the Court, was that the jury wasn’t properly instructed. More specifically, the Court concluded that the things that Governor McDonnell indisputably did on Mr. Williams’ behalf (like expressing support for the research studies he wanted, hosting events to introduce him to the responsible state officials, instructing subordinates to meet with him, etc.) do not in and of themselves count as “official acts.“ Therefore, promising to do such things—even in exchange for a suitcase full of cash—wouldn’t violate the federal anti-bribery statutes, so long as there was no promise to actually help secure a favorable decision (for example, by pressuring subordinates).

According to the Supreme Court, the trial judge did not adequately explain that distinction to the jury. It is therefore possible, the Court explained, that the jury might have believed that McDonnell didn’t actually attempt (or promise) to exert any pressure on subordinates, but still convicted him on the erroneous view that setting up meetings and hosting events alone count as an official acts. So, the Court reasoned, because we don’t know whether the jury convicted McDonnell for illegal acts (taking fancy gifts in exchange for helping Mr. Williams get his studies) or legal acts (taking fancy gifts in exchange for setting up meetings between Mr. Williams and other state officials), we have to vacate the decision. (This leaves open the possibility of a re-trial, with a properly instructed jury, though that is highly unlikely.)

On this glass-half-full view of the case, then, McDonnell is a narrow opinion about jury instructions. In most bribery prosecutions, the defendant has indeed engaged in some identifiable “official act” that would meet the Court’s definition. In the future, prosecutors and trial judges will need to be more careful in clarifying that actions like talking to subordinates and arranging meetings are not by themselves “official acts,” but can be evidence (often very strong evidence) that the defendant agreed to help the bribe-payer get favorable treatment on some concrete government action or decision. At the margins, that holding makes the prosecutor’s job somewhat harder, but not drastically so. And while I would have resolved the case differently (I tend to think the jury instructions, while not perfect, were good enough), the McDonnell ruling is not a huge legal disaster.

But there’s a glass-half-empty take on McDonnell as well. Here, let me briefly emphasize some features of the decision that bothered me. (These observations are not original—others have made similar points, more eloquently):

First, while the Court thankfully didn’t go as far as some of McDonnell’s supporters wanted, the Court nevertheless underplayed the extent to which “pressure” is inherent in the sorts of interactions at issue in this case. Again, the Court rightly acknowledged that if McDonnell, in exchange for gifts, promised to take a “decision or action” on the proposed research study, that would be a crime. But the Court tried to draw what it seemed to view as the key distinction in the case: “Simply expressing support for the research study at a meeting, event or call—or sending a subordinate to such a meeting, event, or call—… does not qualify as a decision or action on the study, as long as the public official does not intend to exert pressure on another official[.]” But let’s get real. Does anyone actually think that a senior public official, such as the governor, can “express support” for a decision to his subordinates in a way that does not (and is not intended to) “exert pressure” on those subordinates? And, for that matter, does anyone seriously believe that Mr. Williams gave Governor $175,000-worth of benefits in exchange not for a promise to help him secure the studies he wanted, but merely for a promise to set up some meetings and express to his subordinates his view (his dispassionate, just-a-suggestion, not-exerting-any-pressure view) that perhaps supporting these studies might be a good idea? I think the answers are pretty obviously “No” and “No.” There’s basically no such thing as a senior executive’s expression or demonstration of support for a particular government action (certainly not one made in exchange for personal material gain) that is not “intend[ed] to exert pressure on another official,” in the relevant legal sense. Would that make the scope of “official act” pretty broad? Sure–but so what?

And that brings me to the second feature of the McDonnell opinion that worried me: The Court seems overly worried about the “criminalization of politics” by overzealous prosecutors, and not nearly concerned enough about the corruption of politics by unscrupulous politicians and well-heeled private interests. The Court’s concern is perhaps best summed up in the following passage, offered up to explain why the Court thought a narrow construction of the term “official act” was essential:

[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…. The [prosecution’s] position [that doing or promising such acts in exchange for something of value is illegal] could cast a pall of potential prosecution over these relationships….

It may be true, as the McDonnell opinion says, that “conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time.” But that’s beside the point. When “conscientious public officials” take these sorts of actions in connection with some specific government decision (as opposed to merely social or ceremonial activities), they are, almost always, trying to “exert pressure” on the constituent’s behalf. And that’s usually fine, because there’s no quid pro quo. But when there is a quid pro quo (something, remember, that the prosecution would have to prove beyond a reasonable doubt), it’s not fine anymore; it’s criminal (or should be). To see this, suppose we re-write the above passage, substituting in for the “arranging meetings” language something that’s clearly an official act—passing new laws:

[C]onscientious public officials [pass laws to benefit their constituents] all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and [pass laws addressing] their concerns…. The [prosecution’s] position [that passing or promising to pass laws in exchange for something of value is illegal] could cast a pall of potential prosecution over these relationships….

The rephrasing makes clear just how beside the point this discussion is. The Court’s concern here is not really with the meaning of “official act” (ostensibly the issue in the case), but rather with the requirement of proving a quid pro quo. Yes, citizens (at least a subset of them) give stuff to politicians all the time. And yes, politicians do stuff for those citizens. And there are those who say (not without reason) that there’s always an implicit and/or generalized quid pro quo, and the whole system is corrupt. But for purposes of the federal criminal laws against bribery, more is required—a specific exchange, connecting this benefit to that official action.

Of course, the broader the scope of potential criminal liability, the greater the potential deterrent effect (a “chilling effect”)—on both lawful and unlawful conduct. And here I concede that the Court has a point. But not much of one. The Court worries that, “[o]fficials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.” Well, maybe. But the requirement of proving a quid pro quo involving a specific government decision substantially limits that concern. I’d rewrite that passage as follows:

Officials might wonder whether they could respond to even the most commonplace requests for assistance [from people who have given them or their campaigns so much money that the assistance might be construed by a prosecutor and reasonable jury as part of an deliberate quid pro quo], and citizens with legitimate concerns might shrink from participating in democratic discourse [by giving politicians substantial material benefits and/or campaign donations, lest doing so make politicians more reluctant rather than more willing to do them favors in the future].

If that’s the chilling effect we’re talking about, sign me up.