Thoughts on the McDonnell Decision

I received the McDonnell decision with mixed feelings.  Initially, I was happy for my colleague Hank Asbill, one of the nation's top criminal defense attorneys, for a great victory.  Asbill and his co-counsel litigated this case the "old-fashioned way" - they fought it, and fought it, and then fought it.  Their tenacity, dedication and skill make me proud to be a defense lawyer.

Not having read the briefs of the parties, or of the amici, or heard the oral arguments, I am hesitant to criticize the opinion, especially an opinion by a brilliant chief justice for a unanimous court (I suspect due to  a compromise by potential dissenters, possibly to avoid an outright dismissal).  Indeed, the opinion makes a strong case that the decision was required by precedent.  However,  I do question several aspects of the opinion. First, I find questionable Justice Roberts' Talmudic crucial narrowing of the definition of "official act" by virtually eliminating the broad catch-all words "action" and "matter," largely by resort to the Latin word jurisprudence that is often an indication that the interpretation is on shaky ground. 

Second, while I am less troubled than the Court about the federal assumption of power to monitor the conduct of state officials for purportedly violating their offices,  there is something bothersome about federal officials by criminal prosecutions in effect setting ethical standards for state officials.  However,  as a practical matter it appears that with rare exceptions local prosecutors lack the will and/or the resources to prosecute high state officials.  In New York City, for instance, U. S. Attorney Preet Bharara has in recent years prosecuted about ten state legislators on corruption charges, while New York's five district attorneys combined have not prosecuted any. 

Third and most importantly, I am concerned by the decision's enablement of business-as-usual pay-to-play practices.   By narrowing the definition of "official act,  the Court has legalized (at least federally) the practice of paying a government  executive to set up a meeting with a responsible official.  By doing so, the Court has given such "soft" corruption a green light.  Under the opinion, a businessperson does not violate federal bribery law by paying a governor, mayor - or even the President -  tens of thousands of dollars to make a phone call to a purchasing official asking or directing her to meet with the businessperson.   And that call, however innocuous that actual conversation may sound, will have real consequences - otherwise, why would the businessperson pay for it?  Even absent a verbal suggestion that the executive wants the official to do business with the caller, the official cannot but  think that the executive would like that she do business with that person.  I imagine a New Yorker cartoon with a governor sitting at a phone booth with a sign saying, "Phone calls, official meetings. $10,000 each." 

To be sure, the law concerning bribery - not alone among federal statutes - vests too much power in the government.  At argument government counsel conceded (candidly but harmfully) that a campaign contribution or lunch to an official could constitute the quid in a quid pro quo.  That is frightening, but the problem is in  the quid, not in the quo - about which this case is concerned.  (I applaud Chief Justice Roberts statement in response to the standard "Trust me, I'm the government" argument that "We cannot condone a criminal statute on the assumption the government will use it responsibly.")   And, certainly, if this case were to apply to campaign contributions - and not, as in this case  personal  receipt of money and goods-in the words of the amicus brief of former White House counsel -  it would be "a breathtaking expansion of public corruption law."  Indeed, a distinction should be made between personal and campaign contributions.  But this case applied to the quo - what the governor did in exchange for $175,000 worth of goods and money.  And, in my view he took "action" as the governor on a "matter" by "official acts" -  hosting an event at the official mansion, making calls and arranging meetings.