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. Continue reading

Does the First Amendment Protect Payment for Access?

 As many readers of this blog know, U.S. law on whether (or when) campaign donations can be proscribed by criminal anticorruption statutes is quite complicated, and to some degree unsettled. On the one hand, the Supreme Court has held that campaign contributions are constitutionally protected “speech” under the First Amendment of the U.S. Constitution. On the other hand, U.S. criminal law can and does prohibit campaign donations that are the “quid” in a classic quid pro quo bribery transaction. In other words, it would unconstitutional for the U.S. to prohibit campaign donations to politicians even if such a prohibition is motivated by the generalized worry that politicians might show special solicitude to the interests of their big donors. But it is perfectly constitutional for Congress to prohibit quid pro quo transactions in which a private interest offers a campaign donation as the “quid” in exchange for some “quo.”

It remains an open question, however, what can qualify as the “quo.” Certainly passing legislation, directing federal funding, and securing special regulatory benefits and exceptions would suffice. But what about mere access — an understanding between the donor and elected official that a campaign contribution will get the donor special access to the official? Two recent Supreme Court opinions — Citizens United v. FEC and McCutcheon v. FEC — contain language suggesting that it might be unconstitutional for U.S. law to prohibit an explicit quid pro quo agreement in which a politician offers access in exchange for campaign contributions. According to Citizens United, “[i]ngratiation and access . . . are not corruption,” while McCutcheon cautioned that “government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies or the political access such support may afford” (emphasis added).

Despite this suggestive language, the Supreme Court has not yet had to confront head-on the question of whether the First Amendment protects quid pro quo payment-for-access. The closest it came was last year in United States v. McDonnell (discussed on the blog here, here, and here). In that case, Governor McDonnell helped to arrange meetings between businessman Jonnie Williams and government officials, and accepted personal gifts from Mr. Williams in exchange. By a vote of 7-0, the McDonnell Court reversed the governor’s conviction and construed the federal bribery statute at issue not to cover the governor’s conduct.

But this doesn’t resolve the constitutional question. McDonnell turned on the construction of the existing federal anti-bribery statute, which requires that the “quo” be an “official act,” which the Court construed narrowly as excluding provision of mere access. Moreover, McDonnell was not a First Amendment case, as the alleged bribes were not campaign contributions. Nonetheless, the Court did discuss the concept of corruption in a manner reminiscent of its opinions in Citizens United and McCutcheon. According to McDonnell: “[C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. . . . The Government’s position [that McDonnell violated the law] could cast a pall of potential prosecution over these relationships if [a donor] had given a campaign contribution in the past . . . . Officials 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.” Furthermore, McCutcheon — which was a First Amendment case — defined the sort of corruption that could justify restrictions on campaign donations as “a direct exchange of an official act for money” (emphasis added), which might imply that, at least in the campaign donation context, McDonnell’s reading of the anti-bribery statute is constitutionally required.

But is that right? Separate from the question of whether Congress should criminalize payment-for-access, and from the question of whether Congress has in fact done so in the existing federal anti-bribery statutes, is the question of whether Congress could criminally proscribe payment-for-access if it wanted to. In other words, is payment-for-access constitutionally protected? Though some of the Supreme Court’s recent language has suggested such a conclusion, I believe that proposition is wrong, for three reasons:

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Guest Post: What the McDonnell Opinion Portends for U.S. Anticorruption Law, and U.S. Politics

Jacob Eisler, Lecturer at Cambridge University, contributes the following guest post:

As Matthew observed in his blog post earlier this summer on the Supreme Court’s unanimous decision to vacate the conviction of former Virginia Governor Bob McDonnell, there are two different ways one might interpret this decision. One could read McDonnell narrowly as a case that focuses on overly expansive jury instructions on the meaning of “official act” in the statutory definition of bribery. Alternatively, a more expansive reading would focus on language in the opinion that suggests the Court has a lenient attitude towards self-serving behavior by (high-ranking) public officials. As I argue at length in a forthcoming article, the broader—and for anticorruption activists more troubling—reading of the case is the right one, and the decision therefore has potentially extensive implications for American politics. Continue reading

Against Alarmism: Frank Vogl’s Misguided Critique of the DOJ’s Decision Not To Re-Try Bob McDonnell

Earlier this month, the ongoing saga of the bribery charges against former Virginia Governor Bob McDonnell came to an end—not with a bang but a whimper—when the U.S. Department of Justice announced that it would not seek a re-trial in the aftermath of the Supreme Court’s decision to vacate McDonnell’s original conviction. Given that we’ve already had plenty of discussion of the McDonnell case on GAB (including commentary on the Supreme Court’s decision here and here), I wasn’t planning to say more about this.

But then I read Frank Vogl’s blog post on The Globalist. Mr. Vogl’s view is that the DOJ’s decision shows that, with respect to corruption, it’s now the case that “[a]nything goes in America, third-world style” and that “[t]he United States, once an admirable leader on combatting political corruption, has now fallen into line with the lax standards of business-political relationships that pervade many other countries.” (He later refers to the U.S. “a stinking city on the Hill.”) Mr. Vogl also declares that the “core message” of the DOJ’s decision not to re-try McDonnell is that the DOJ has “accepted an increasingly narrow definition of corruption,” and he further insinuates that Hillary Clinton and the mainstream Democratic Party (as well as the Republican Party) are “content to accept money in politics in all its forms.”

This is histrionic nonsense. The core arguments are so obviously flawed that at first I didn’t think it was worth writing a rebuttal. But Mr. Vogl is an influential voice in the world of anticorruption advocacy, given that he’s one of the 852 co-founders of Transparency International. (OK, OK, that’s an exaggeration. But if I had a quarter for every person I’ve heard claim to have been one of the founders of TI, I’d be able to buy myself a Grande Frappuccino at my local Starbucks, maybe even a Venti.) So I thought it would be worthwhile to explain why I had such a negative reaction to his piece. Here goes: Continue reading

Guest Post: What the McDonnell Ruling Means for Future Corruption Prosecutions

Ziran Zhang, an associate at Burnham & Gorokhov, PLLC, a Washington D.C. law firm, contributes the following guest post:

The Supreme Court’s decision last month in United States v. McDonnell has raised questions about the continued vitality of public corruption prosecutions in the United States. Some observers, including Professor Stephenson, pointed out that the decision itself was cast in narrow terms, and may not make a big difference to most public corruption cases.  I respectfully disagree: McDonnell created an important substantive rule of law that will have a lasting impact, and this impact is apparent when one applies McDonnell’s holding to another high-profile public corruption case—the prosecution of former New Jersey Senator Robert Menendez.

To prove a bribery offense, the government must show (among other things) that the public official promised an official act, defined further as a “decision or action” on a “question or matter” (or cause, proceeding, or suit). A “question or matter,” the McDonnell opinion holds, must be a “formal exercise of government power” that is “specific” and “concrete.” As for a “decision” or “action,” it can be direct (such as when an official issues an order or makes a decision) or indirect (such as when an official “exerts pressure” or “gives advice” to another official.) McDonnell left substantial uncertainty over what counts as “exerting pressure” or “giving advice.”  As Professor Stephenson’s post points out, pressure is inherent from any kind of contact between a subordinate and an official in high office, but in McDonnell the Supreme Court quite clearly rejected that view, indicating that something more is required.

So, how does the McDonnell holding affect the prosecution of Senator Menendez? The facts of the Menendez prosecution are remarkably similar to those of the McDonnell case. According to the indictment, Senator Menendez had a longstanding friendship with Dr. Salomon Melgen. Melgen gave Menendez gifts, such as free flights, luxury hotel stays, and money to various political campaigns benefiting Menendez; Menendez returned the favors in various ways: Continue reading