Constitution Check: Can the Supreme Court compromise on corruption?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser,  looks at the Supreme Court arguments in the McDonnell corruption case and an age-old problem of the separation of powers.

THE STATEMENT AT ISSUE:

“It’s not because I’m in favor of dishonest behavior.  I’m against it….My problem is the criminal law as the weapon to cure it.  And if the criminal law is the weapon that goes as far as [the Department of Justice wants], there are two serious problems.  One, political figures will not know what they’re supposed to do and what they’re not supposed to do, and that’s a general vagueness problem.  And the second is, I’d call it a separation of powers problem.  The Department of Justice in the Executive Branch becomes the ultimate arbiter of how public officials are behaving in the United States – state, local and national….Now, to give that kind of power to a criminal prosecutor, who is virtually uncontrollable, is dangerous to the separation of powers….This case is as fundamental a real separation of powers problem as I’ve seen.”

 – Comment by Justice Stephen G. Breyer, during a Supreme Court hearing on Wednesday as the Justices reviewed the public corruption conviction of former Virginia Governor Robert F. McDonnell.

WE CHECKED THE CONSTITUTION, AND…

“If men were angels, no government would be necessary…A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the need for auxiliary precautions.”  So wrote James Madison in Federalist Paper 51, explaining why the new government needed to have its powers separated among branches that would act as checks upon each others’ powers.  One such check exists in the power of an independent court system to monitor how government prosecutors use the criminal law.

The Supreme Court, on Wednesday, spent an active hour examining an age-old problem of the separation of powers: when do federal prosecutors in the Executive Branch go too far in the use of the criminal law to deal with corruption of elected officials?  It seemed quite clear that most of the Justices were troubled, some deeply, by a high-profile corruption case that Justice Department prosecutors won against a former Virginia governor, Robert F. McDonnell.

McDonnell and his wife were convicted under a handful of laws that make it a crime to take money or other valuable things in return for the exercise of “official acts” in government, at the national, state or local level.   Congress, in passing those laws, however, did not specify what “official acts” would be covered. Sorting that out is the task the Justices agreed to take on in reviewing the former governor’s guilty verdict (his wife’s separate case is on hold, awaiting the outcome of McDonnel’s appeal).

The governor and his family, according to prosecutors, took about $170,000 worth of money, loans, luxury goods or expensive parties and outings from a Richmond, Va., businessman who wanted the governor’s help to get state agencies to take steps that would promote the businessman’s product, a health supplement made from tobacco leaves.

The prosecutors persuaded the jury in McDonnell’s trial that it was a crime if he took the money, gifts and favors in return for arranging meetings or holding events that could work in his benefactor’s business interests.  McDonnell has taken his case to the Supreme Court to get a ruling that “official acts,” under the criminal laws at issue, must involve a direct use of governmental machinery or a direct attempt to influence that machinery.

It is not enough, his lawyers contended, for an official to have obliged his benefactor with the kind of courtesies that an elected official quite normally provides for citizens or political supporters.  McDonnell has support for that argument from an impressive array of former government officials, including a list of former chief staff lawyers in the White House during Republican and Democratic administrations, and Chief Justice John G. Roberts, Jr., tellingly brought up that support in Wednesday’s argument.  It was, Roberts said, “extraordinary” for those lawyers of differing political persuasions to join in arguing that the McDonnell verdict was a threat to “representative democracy.”

That could well have been the theme of the entire argument before the Justices.  Along with the Chief Justice, Justices Breyer and Anthony M. Kennedy went searching for ways to limit these criminal laws in a way that would not raise a legal risk for the ordinary communications or gestures of service for constituents in which elected officials engage.  As Breyer pointed out, there was no sympathy on the Court for “dishonest behavior.” But there clearly was sympathy for the former Virginia government’s complaint that he had no chance to escape a guilty verdict, given the sweep that federal prosecutors had provided in the phrase “official acts.”  Said Breyer: “We’re worried.”

Kennedy, for example, suggested that the prosecutors’ approach might have made it a crime for a school janitor to accept a bottle of beer for giving a clean-up priority to a particular classroom.  It was an exaggerated hypothetical, but it nonetheless did convey the breadth that some members of the Court saw in the McDonnell prosecution.

The Chief Justice noted, ominously, that if the laws are in fact as broad as the prosecutors had made them in this case, they might risk being struck down as unconstitutionally vague.

The court, if during its deliberations in coming weeks does come to the conclusion that the McDonnell verdict was flawed, the laws at issue might not necessarily be struck down entirely.  An alternative would be to try to spell out what several Justices referred to as “a limiting principle.”  Neither of the two lawyers who argued the case on Wednesday seemed to have satisfied the Justices with what each advocate thought “official acts” should – or should not -- encompass.

From here on, it will be up to the Justices using their own legal perceptions to find a way to avoid handing over to the Executive Branch the unchecked role of keeper of political morality in America.  That won’t be a simple endeavor.