Despite Predictions of Doom, McDonnell v. United States Has Not Derailed U.S. Anticorruption Prosecutions

In 2016, the U.S. Supreme Court decided a case called McDonnell v. United States, which unanimously vacated the corruption conviction of former Virginia governor Bob McDonnell. McDonnell, according to prosecutors, had accepted a variety of gifts and other benefits from a businessman in exchange for using his influence as governor to help that businessman obtain assistance from various state agencies. The federal statute at issue made it a crime for a public official to perform (or offer to perform) an “official act” in exchange for something of value. But the problem, as the Supreme Court saw it, was that the jury in McDonnell’s case was told an “official” act could include something like setting up a meeting, making an introduction, or speaking favorably about a project to the government official responsible for making the relevant decision. This understanding of “official act,” the Supreme Court said, was too broad. An “official act,” the Court held, involves “a formal exercise of governmental power,” and while this could include ordering or pressuring another official to take or refrain from some action, other activities, like “[s]etting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of ‘official act.’”

How big a deal was the McDonnell decision? In the immediate aftermath of the decision, many anticorruption activists decried the holding as permitting “[a]ctions by U.S. politicians that look wrong, smell wrong and raise profound ethical issues.” Indeed, many critics characterized the McDonnell decision as having effectively “legalized” all but the most egregious and clumsy forms of bribery (see, for example, here, here, here, and here.) However, as Professor Stephenson observed on this blog at the time, the McDonnell holding could be read more narrowly. The opinion did make prosecutors’ job somewhat more difficult in holding that merely setting up a meeting or speaking with subordinates would not, without more, count as “official acts,” but the opinion did not appear to rule out the possibility that an official act might include, for example, ordering or pressuring a subordinate to take some specific action on behalf of the bribe-payer. The jury instruction in McDonnell had been (in the Supreme Court’s view) overly broad, but most corruption prosecutions would probably still be able to proceed, so long as the jury was properly instructed. Professor Stephenson acknowledged at the time, though, that this “glass-half-full” view of McDonnell was only one possible reading, and that the decision might end up sweeping much more broadly in practice.

Now, over three years since McDonnell, what can we say about the decision’s impact? In the initial aftermath of the decision, it did indeed seem that McDonnell would prove a major impediment to corruption prosecutions. In the McDonnell case itself, the government decided not to retry McDonnell. This might be read as a tacit admission that under the Supreme Court’s newly-announced understanding of “official act,” the government probably wouldn’t be able to get a conviction. Furthermore, the decision was seen as triggering a string of significant defeats for public integrity prosecutors. For example: The government failed to obtain a guilty verdict against New Jersey Senator Robert Menendez on federal corruption charges (the trial ended in a hung jury, and the government subsequently dropped the case); a federal appeals court, citing McDonnell, vacated two hard-won guilty verdicts for corruption against the prominent New York politicians Sheldon Silver and Dean Skelos; and federal prosecutors in New York decided not to pursue charges after a long public corruption investigation into New York City Mayor Bill De Blasio, because of “the high burden of proof, the clarity of existing law” and the challenge of proving corruption without “evidence of personal profit.” The De Blasio case is especially pertinent given that two men, Harendra Singh and Jona S. Rechnitz, pled guilty to giving De Blasio’s campaign and Political Action Committee tens of thousands of dollars in return for the mayor helping them negotiate favorable settlements for businesses that owed the city millions in rent and property charges. Even with these two witnesses, prosecutors dropped the case because they appeared unsure Mayor De Blasio took an “official action” as defined in McDonnell.

But these initial indicators did not develop into a larger trend, and McDonnell has not turned out to be as much of an impediment to federal corruption prosecutions as some critics feared. Subsequent government prosecutions and court decisions have made this clear. Consider the following examples:

  • Although, as noted above, a federal appellate court vacated the convictions of Sheldon Silver and Dean Skelos in light of McDonnell, federal prosecutors retried both defendants, and both were convicted by new juries that received instructions consistent with McDonnell (see here and here).
  • Similarly, another federal appeals court concluded that McDonnell required it to vacate a jury verdict against Congressman Chaka Fattah for five counts of corruption, but noted that several of the charges could “be reconsidered by a properly instructed jury.” This reasoning was also used by a different federal appeals court in a case called United States v. Van Buren.
  • Furthermore, in United States v. Conrad, a separate appellate court held that merely “facilitating the award of government contracts” was still an “official act.” This approach that was also accepted by another federal appellate court in United States v. Repak.
  • Broadening this liability further, an appellate court in United States v. Lee held that a defendant was still culpable if he “use[d] his official position to exert pressure on another official to perform an ‘official act,’ or if an official ‘use[d] his position to provide advice to another official, knowing or intending that such advice[] form the basis for an ‘official act’ by the other official.'”
  • Notwithstanding the De Blasio case, where prosecutors appear to have decided not to press charges due in part to the difficulties of proof under McDonnell’s more demanding standard, it does not seem that McDonnell has had a broader chilling effect on anticorruption prosecutions, which have continued apace. For example, federal prosecutors have brought multiple corruption charges against Chicago Alderman Ed Burke, as part of an ongoing probe into a Chicago political corruption ring, and have also indicted and/or convicted public officials on corruption charges in places like Atlanta and Philadelphia.

This is only a partial list—the larger point is that the track record of federal corruption prosecutions after McDonnell is inconsistent with the strong predictions that the decision would make such prosecutions so difficult that bribery would be, as a practical matter, “legalized.” Of course, this does not mean that McDonnell was rightly decided, or that the case had no impact. After all, other than the cases that were publicly dropped or reversed after McDonnell, it is almost impossible to know what investigations federal prosecutors did not pursue because of McDonnell, and it’s entirely possible that the decision did dissuade federal prosecutors from pursuing more difficult cases. But on the whole, it appears that most federal courts have interpreted McDonnell narrowly rather than broadly, and, as a result, prosecutors are still able to pursue public corruption cases vigorously and often successfully.

5 thoughts on “Despite Predictions of Doom, McDonnell v. United States Has Not Derailed U.S. Anticorruption Prosecutions

  1. It is important that American prosecutors continue to bring charges in anticorruption cases against politicians and high-level public officials, including in situations relatively close to the facts in MacDonnell. Perhaps one of those cases reach the Unied States Supreme Court, and the exact holding of the MacDonnell decision is clarified.

  2. Thanks Jacques for pointing out that the immediate reactions to the MacDonnell decision did not play out as badly as was predicted at that stage. It must obviously be frustrating for prosecutors that De Balasio cannot be tried despite people pleading guilty to giving him large sums of money. Perhaps the other upside given the cultural norms prevalent at the moment, is that when there is an actual prosecution under the stringent MacDonnell standard there will be no room for accused politicians to claim “unfair targeting” or “witch-hunt”.

  3. It seems that another concern of the Court in both McDonnell and Skilling, which limited the honest services fraud doctrine due to vagueness issues, is federalism. The Court seems wary of federal prosecutions of state and local government officials based on broad readings of corruption-related statutes. It would be interesting to see if state legislative bodies could come up with more restrictive statutory language that does not raise vagueness concerns in the wake of McDonnell.

    • Thanks for your comment Masha. That is sort of a perfect solution to the problematic federal corruption doctrines being created by the Court now. But any new state laws might bump up against supremacy concerns with the federal ruling as a legal matter and as a prudential consideration, without a groundswell of public outrage, it is hard to get state senators to vote for statutes that limit their ability to rent seek or put their usual activities in legal jeopardy.

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