Supreme Court Limits Reach of Federal Corruption Statutes in McDonnell v. U.S.

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Supreme Court Limits Reach of Federal Corruption Statutes in McDonnell v. U.S.

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Kevin J. Whelan

On June 27, the U.S. Supreme Court vacated the corruption convictions of former Virginia Governor Robert McDonnell in a unanimous decision.[1] The Court held that on their own, actions like arranging meetings and hosting events did not constitute “official acts” under the federal honest services fraud statute and the Hobbs Act.[2]  An official act requires the “formal exercise of governmental power”—meaning things like lawsuits, administrative adjudications, and committee hearings.[3]

This ruling undercuts the ability of federal prosecutors to use these statutes to prosecute political favors based on providing access to government officials.

Background

In 2014, McDonnell was convicted of 11 counts of corruption under the federal honest services fraud statute[4] and the Hobbs Act,[5] which prohibits extortion by a government official.[6] He was sentenced to two years in prison. The Fourth Circuit affirmed.[7]

The case centered on McDonnell's interactions with Jonnie R. Williams, Sr., the CEO of a pharmaceutical company, Star Scientific.[8] Williams wanted Virginia state universities to perform clinical tests of Star Scientific’s new dietary supplement, and he solicited Governor McDonnell’s support in this effort.[9] At the same time, Williams made gifts and loans to the McDonnell family worth over $175,000, including vacations, golf outings, designer clothing, and a Rolex watch.[10]

At trial and on appeal, the main issue was whether McDonnell ever carried out an “official act” for Williams.[11] The two charging statutes target quid pro quo arrangements—where some valuable thing is exchanged for an action—but neither statute applies unless the government official carries out or agrees to carry out an “official act.”[12] There was no question that the lavish gifts McDonnell received were a significant quid; the issue was whether McDonnell’s actions constituted the kind of quo that would make the statutes apply.

McDonnell’s specific actions were therefore important.  He did not use his power as Governor to order university officials to conduct the clinical tests Williams was seeking. Instead, McDonnell 1) arranged a meeting between Williams and a Secretary of Health aide about possible clinical trials at the state universities, 2) hosted a lunch at the Executive Mansion at which Williams gave Virginia researchers samples of Star Scientific’s supplement and money for grant proposals, 3) asked the Secretary of Administration (who oversaw the state employee health plan) to meet with representatives of Star Scientific, and 4) provided other support that was less clearly official.[13]

The jury instructions issued by the District Court defined “official act” broadly to include “acts that a public official customarily performs,” including acts “in furtherance of longer-term goals” or “in a series of steps to exercise influence or achieve an end.”[14]

Decision

Counsel for McDonnell—bolstered by an array of amicus briefs, including one filed by every White House counsel from the past 35 years—argued that the District Court’s expansive construction of “official acts” to include routine actions like setting up meetings between constituents and state officials would criminalize a broad swath of ordinary political activities, effectively granting prosecutors immense power over the political process.[15]

The Court agreed.  Chief Justice Roberts wrote the decision for a unanimous Court, rejecting the government’s “boundless interpretation of the federal bribery statute” in favor of a “more limited reading.”[16]   Noting that both parties defined “official act” with reference to the federal bribery statute (18 U.S.C. §201) the Court stated that Section 201’s definition of “official act” implies a two-step analysis[17]:

First, the government must identify a “question, matter, cause, suit, proceeding or controversy” that “may at any time be pending” or “may by law be brought” before a public official.

Second, the government must prove that the public official made a decision or took an action “on” that question, matter, cause, suit, proceeding or controversy, or agreed to do so.

As to the first step, the Court looked for a “formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination” and concluded that an ordinary meeting arranged by a public official is not itself a “question or matter” involving a formal exercise of power.[18]

Turning to the second step, the Court considered whether an ordinary meeting arranged by a public official could constitute a decision or action on some other existing “question” or “matter”—such as the matter of deciding whether Virginia’s state universities would conduct studies of Star Scientific’s supplement.[19] The Court said no:

[H]osting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a “decision or action” . . . something more is required . . . the public official must make a decision or take an action on that question or matter, or agree to do so.[20]

The Court, however, provided three examples of actions that would be “official acts”: ultimately deciding to initiate a state university study, narrowing a list of potential university research topics, and using an official position to pressure another governmental official to act on a “question, matter, cause, suit, proceeding or controversy.”[21] The Court also reiterated that agreeing to carry out an official act triggers criminal liability, even if the public official never follows through. [22]

The Court held that the District Court should have instructed the jury in accordance with this two-step analysis and specifically should have explained “that merely arranging a meeting or hosting an event to discuss a matter does not count as a decision or action on that matter.”[23]

Expressing no opinion about McDonnell’s guilt or innocence under this standard, the Court held that the District Court’s jury instructions allowed the jury to convict him for conduct that was lawful.[24] The Court vacated the convictions and remanded.[25]

Implications

This decision significantly limits federal prosecutors’ ability to use the honest services fraud statute and the Hobbs Act to prosecute political favors that stop short of a quid pro quo involving a clear exercise of official governmental power.

Still, this does not leave prosecutors powerless to combat corruption.  McDonnell’s counsel argued that because the statutes under review “are not meant to be comprehensive codes of ethical conduct,” more overt pay-to-play political actions “might actually be violating a lot of other laws, including the separate provision in Section 201 that prohibits you from undertaking any act in violation of your official duties in exchange for money, or 5 U.S.C. 7353, which prohibits you from . . . taking anything from anyone whose interests could be affected by the performance or nonperformance of your duties.”[26] 

While the Court’s ruling significantly limits the scope of prosecutorial discretion under these corruption statutes, prosecutors’ hands are not tied -- but they may need to reach for a different set of tools.

 

[1] 579 U. S. ____ (2016) at 1, 27.

[2] Id. at 1-13.

[3] Id. at 21.

[4] 18 U.S.C. §1343-1346.

[5] 18 U.S.C. §1951.

[6] Id. at 8, 12.

[7] Id. at 12-13.

[8] Id. at 1-8.

[9] Id. at 1, 3.

[10] Id. at 2-8.

[11] Id. at 1.

[12] Id. at 8-13.

[13] Id. at 5-8.

[14] Id. at 24-25.

[15] http://www.supremecourt.gov/oral_arguments/argument_transcripts/15-474_1bn2.pdf at 12-19, 28-29.

[16] 579 U. S. ____ (2016) at 16, 28.

[17] Id. at 9, 14.

[18] Id. at 17.

[19] Id. at 17.

[20] Id. at 19.

[21] Id.

[22] Id.

[23] Id. at 24-27.

[24] Id. at 24.

[25] Id. at 27-28.

[26] http://www.supremecourt.gov/oral_arguments/argument_transcripts/15-474_1bn2.pdf at 14.