To Gauge McDonnell’s Impact, Menendez—Not Skelos or Silver—Is the Case To Watch

In June 2016, the United States Supreme Court vacated the conviction of former Virginia Governor Bob McDonnell. McDonnell had been convicted for accepting loans, gifts, vacations, and other valuable items from a businessman. In return, Governor McDonnell allegedly promised or performed a number of “official acts,” mostly in connection with trying to help the businessman get state government support for a nutritional supplement his company was developing. The Supreme Court vacated the conviction on the grounds that the trial court improperly instructed the jury on what conduct could count as an “official act” (the “quo” in a quid pro quo) under the federal bribery statute. In particular, the trial court had instructed the jury that “official acts” could include things like helping the businessman by arranging meetings with state government decision-makers, hosting an event to promote his business, or suggesting that subordinates speak to him. The Supreme Court ruled that this definition of “official act” was too broad, since it encompassed almost any act a government official takes.

How much did McDonnell change the landscape for federal corruption prosecutions in the United States? Some worry that it has already had a large and unfortunate impact, and point to recent developments in New York: Last July, a little over a year after the McDonnell decision, a federal appeals court relied on McDonnell as the basis for vacating the conviction of Sheldon Silver, the former New York State Assembly Speaker who was found guilty in 2015 for taking millions in payments in return for supporting legislation and directing grants that helped the payers. And just last month, another panel of that appellate court also relied on McDonnell in vacating the conviction of former New York State Senate Majority Leader Dean Skelos, who was convicted in 2015 (along with his son Adam) for bribery, extortion, and conspiracy. According to prosecutors, Skelos had promised votes and taken actions benefitting three companies in exchange for providing his son with consulting fees, a job, and direct payments.

Skelos’ and Silver’s convictions were seen as a victory for federal prosecutors, and a much-overdue effort to clean up the notoriously corrupt New York state government. Many commentators pointed to the recent appellate court rulings vacating those convictions as evidence of McDonnell’s broad and malign effects on efforts to clean up corruption (see, for example here , here, and here). But while the vacations of these convictions are a setback for anticorruption advocates, they do not actually reveal much about the reach of McDonnell, nor are they likely to materially change the fates of Skelos and Silver. The much more important case to watch—the one that will be a better indicator of McDonnell’s long-term impact— is the trial of New Jersey Senator Robert Menendez.

To understand why the vacations of the Skelos and Silver convictions don’t tell us much about the impact of McDonnell, it’s important to remember that the McDonnell holding can be viewed quite narrowly. As Professor Stephenson wrote shortly after the McDonnell opinion came down, while the Supreme Court used some troublingly broad language in parts of the opinion, it focused on the jury instructions. And in both the Silver and Skelos decisions, the appellate courts based their decision entirely on how McDonnell changed the requirements for jury instructions—the jury instructions in Silver and Skelos were materially identical to those found to be overbroad in McDonnell. But notably, the courts in both cases went no further. Indeed, they both rejected the defendants’ claims that the evidence was insufficient to support a conviction by a properly instructed jury. In other words, the courts in both Silver and Skelos found that the prosecution had strong enough evidence that a properly instructed jury might have voted to convict—but because the jury instruction was too broad, it’s also possible that the jury voted to convict based on the wrong evidence. This means that prosecutors are permitted to retry the case, with the jury instructions revised to conform to the Supreme Court’s holding in McDonnell. In contrast to the McDonnell case itself, which the prosecutors dropped after the Supreme Court vacated the conviction, prosecutors have already announced that they plan on retrying Skelos and Silver. Given the strength of the evidence against both defendants, it’s unlikely that the new jury instructions will change the outcomes. So while McDonnell represents a bit of a hassle for the prosecutors in these two cases, there’s nothing in the appellate court decisions that indicates that McDonnell has much of an impact the ability of prosecutors to using anti-bribery laws to convict politicians like Silver and Skelos.

The Menendez case will provide more information on McDonnell’s impact on corruption prosecutions. Unlike Skelos and Silver, the entire Menendez trial is taking place after McDonnell. Indeed, Menendez is one of the first major public corruption cases to be litigated since McDonnell. Therefore, prosecutors can frame their case around the new standard for a bribery conviction and use the proper jury instructions to avoid risking reversal on those grounds.

Moreover, the “official acts” that Senator Menendez allegedly provided in exchange for gifts and donations fall somewhere in the middle of the spectrum between the activities that McDonnell said don’t count as “official acts” (arranging meetings and providing access) and those of defendants like Silver and Skelos, that almost certainly do count as official acts (supporting legislation and voting in favor of specific initiatives). In Menendez, the government alleges that Senator Menendez, in return for gifts and luxury vacations, “exerted substantial pressure” on administrative officials to aid a donor. According to the prosecution, he asked the State Department to assist the donor in obtaining visas for three of the donor’s girlfriends, and intervened when the Centers for Medicare and Medicaid Services (CMS) demanded that the donor, a doctor, pay back $8.9 million in Medicare overbillings. Senator Menendez allegedly called the director of CMS and tried to convince the agency to approve his bills, and former Health and Human Services Secretary Katherine Sebelius testified that Senator Menendez asked her personally to change the Medicare billing policy.

Do these count as “official acts” after McDonnell? What Senator Menendez allegedly did goes further than just the “setting up a meeting, hosting an event, or calling an official,” which the McDonnell Court said did not count as official acts. Furthermore, the McDonnell opinion said explicitly that “pressur[ing] or advis[ing] another official on a pending matter” could count as an “official act.” Senator Menendez’s actions would seem to fit into that category, especially since Senator Menendez personally attended meetings to advocate for policies favoring the doctor.

That said, it’s possible that the McDonnell opinion, including the Supreme Court’s language expressing concern about how aggressive corruption prosecutions could “cast a pall” over “conscientious public officials arrang[ing] meetings for constituents [and] contact[ing] other officials on their behalf,” might be read to endorse or imply an even narrower scope for the term “official act.” A court so inclined might note, for example, that Senator Menendez lacked the ability to fire or otherwise punish the members of the executive branch he interacted with on behalf of the doctor, making his intervention more of a request or suggestion. If the court finds that Senator Menendez’s actions don’t count as “official acts” under McDonnell, that outcome could significantly raise the bar for proving public corruption cases.

The Silver and Skelos cases are mostly distractions, at least with respect to assessing McDonnell’s longer-term impact on U.S. anti-bribery law. Menendez is likely to be the case that will raise, and perhaps resolve, the internal tension in the McDonnell opinion: whether it’s ultimately a relatively narrow opinion about an overbroad jury instruction, or one that endorses the idea that using officeholder status to influence government policy decisions in exchange for money, gifts, or other favors, is simply how business gets done in politics.

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