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. Continue reading