Justice Breyer’s concern should not free McDonnell
In 2010, the Governor of Virginia, Robert McDonnell, accepted more than $100,000 in cash and luxury goods from a Virginia businessman, Johnnie Williams. That money bought Williams access to the Governor and the Governor’s help in encouraging the State to fund studies to benefit William’s business. And the Governor followed through on that offer of help, making subordinates available for Williams to lobby and prodding those subordinates for updates on progress on Williams’s requests.
On Wednesday, the Supreme Court heard Governor McDonnell’s appeal from his conviction for bribery. Fortunately for Governor McDonnell, and unfortunately for the citizens of Virginia, the Court seemed skeptical of the Government’s argument that the Governor’s actions were covered by the federal bribery statute, which makes it illegal to corruptly sell influence over “official acts.” The Government argued that, by selling access to subordinate officials and taking steps to encourage those officials to use Government funds to help Williams, McDonnell had violated the law. McDonnell argued that access was not an official act and urged the Court to limit the bribery statute to situations in which an official “urges” subordinates to exercise sovereign power in a particular way. Citizens for Responsibility and Ethics in Washington filed a friend-of-the-court brief in the case, arguing that meetings could constitute “official acts” covered by the statute, that the sale of access constituted an illegal “poll tax,” and that the sale of access causes the same kind of harm that the sale of votes does: the corrupt swaying of government action.
The Court seemed wary, however, of adopting a broad reading of the federal bribery law. In particular, Justice Breyer expressed serious concerns that the federal bribery statute could criminalize something that happens “every day of the week”: “politicians writ[ing] on behalf of constituents letters to different parts of the government, saying, will you look at the case of Ms. So-and-so who was evicted last week.” Justice Breyer’s concern appeared to be based on the fact that, in other cases, the “quid” in a “quid pro quo” bribery scheme could consist of a wide range of items of value, including campaign contributions. Justice Breyer worried that a broad reading of the “quo”—the “official act[s]” that are illegal for officials to sell—would give federal prosecutors too much power.
Justice Breyer’s concerns, however meritorious, should not prevent the Court from affirming Governor McDonnell’s conviction. That is because, while “quid” and “quo” can and should be interpreted broadly, the need for the Government to prove beyond a reasonable doubt the existence of a “pro”—a link between the gift or payment an individual gives to an official and the action that official takes for that individual—does serious and important work. As counsel for the Government noted, what separates the constituent services Justice Breyer described from criminal bribery like Governor McDonnell’s is that there was an agreement—a sale—that obliged Governor McDonnell to give access and influence to Williams in exchange for cash and luxury items. The hypothetical responsive elected official who writes a letter to executive branch officials to look into the eviction of his constituent is almost certainly not doing it in exchange for a payoff, whatever form that payoff may take. But Governor McDonnell did not set up meetings with state employees and prod them to help Williams out of a genuine concern for a constituent: all parties agree he did it for the money.
Justice Breyer nonetheless appeared to conclude that the need to prove an agreement wasn’t sufficient to address his concern. After all, he noted, an agreement could be inferred from the circumstances, so how could we prevent an overzealous prosecutor from charging an elected official who simply sought to assist his constituents after hearing their concerns over lunch?
But the Justice’s concern is not alleviated by ruling for Governor McDonnell. Even if the definition of “official act” were narrowed, the line between an innocent act and a criminal act would still depend on the existence of the exchange. For example, all parties agreed that if a legislator sold her vote, that sale would constitute the taking of an illegal bribe. But what is to stop a prosecutor from unreasonably piecing together a vote that would favor a constituent with the constituent’s previous offer of lunch and hauling the official into court for bribery? Even if the Court were to artificially limit the scope of what would count as an official act, overzealous prosecution would be possible.
And, to be clear, this is not a case of overzealous prosecution. No reasonable person, never mind the governor of a state, would think selling one’s elected office to enrich himself with more than $100,000 in cash and luxury goods was anything but corrupt. No elected official would accidentally and innocently find himself in that situation simply by advancing the interests of his constituent. There may be close cases out there. This is not one of them.