Lyle Denniston, the National Constitution Center’s constitutional literary adviser, examines the coming Supreme Court appeal in the political corruption case of Virginia’s former governor.
THE STATEMENT AT ISSUE:
“Gov. McDonnell’s petition [seeking Supreme Court review] will raise substantial questions, including about the outer boundaries of ‘official action’ under the federal corruption laws. Specifically, whether it could be criminal to engage in a quid pro quo exchange in which the official agrees merely to arrange a meeting, ask a question, or attend an event—even if the official does not agree to exercise, or urge others to exercise, any actual governmental powers. … [The decision of the appeals court] has clear implications for constitutional values like federalism, due process, and First Amendment rights.”
– Excerpt from a legal filing on August 13 by lawyers for former Virginia Governor Robert F. McDonnell, informing the U.S. Court of Appeals for the Fourth Circuit that they will be challenging his political corruption conviction in the Supreme Court in coming weeks. McDonnell was convicted of 11 corruption counts and has been sentenced to two years in prison. He is seeking to remain free until the Supreme Court acts on his planned appeal.
WE CHECKED THE CONSTITUTION, AND…
From their study of the ancient Roman Republic, the founders who wrote the American Constitution wanted to imitate some of its better aspects, and one of those was the idea of “civic virtue.” That is the notion that the people, in order to establish a political community capable of surviving and remaining stable, must have a kind of moral excellence about them—and so must their leaders.
The genius of a republican form of government, James Madison argued in the Federalist Papers, was that a selfless people could be trusted to choose virtuous leaders, but that the people’s government could be set up in such a way as to correct for leaders who failed to maintain that ideal. The founders had no illusion that the temptations of power would never corrupt some leaders.
Modern America, of course, is entirely familiar with the sad frequency with which scandals engulf the political class, and prosecutors for generations have been aggressively using existing fraud laws to go after government officials, high as well as low. Indeed, a President has been forced to resign over scandal, and another President has barely avoided being ousted because of scandal.
Without being widely noticed, however, the Supreme Court in recent years has shown an increasing skepticism about the sweep of prosecutors’ power to use fairly loosely worded federal anti-corruption laws to go after fraud in public life. For example, the Justices have demanded more explicit proof of wrongdoing when prosecutors make use of a long-time favorite weapon: a law that makes it a crime to fail to give the public “honest services.” In monitoring the use of federal laws to regulate campaign finance, the Justices have also narrowed the concept of corruption in politics, insisting that the only action that is illegal is actually buying influence with a would-be officeholder—paying in hopes of achieving some official action.
Those very developments have been in the background as federal prosecutors pursued an extremely high-profile case against a politician who at one time was widely regarded as having a very bright future in national Republican politics—the ex-governor of Virginia, Robert F. McDonnell. And now that prosecutors have won a guilty verdict against McDonnell, a verdict that has now been upheld by a federal appeals court, the case is on its way to the Supreme Court.
When McDonnell’s lawyers actually file their appeal to the Justices, they will seek to turn it into a major constitutional cause, and not just a case focused on what kinds of acts or actions by an officeholder can be used to justify a charge of fraud or bribery.
The core of the prosecution case against the former governor was that he took money and goods and other lavish favors from a businessman who was trying to get state government to help him as he promoted a supplement, made from tobacco leaves, that was to be used for treating some medical ailments.
The relationship that developed, prosecutors charged, violated both the federal anti-fraud law that focuses on failure to provide “honest services” while in office, and the federal extortion law. Both of those have been interpreted by the Supreme Court as, basically, laws against bribery.
Under both laws, prosecutors must prove beyond a reasonable doubt that the officeholder accepted something of value in return for taking an “official act” or “official action.” During McDonnell’s trial, his defense lawyers sought repeatedly—and unsuccessfully—to have those phrases interpreted to mean that McDonnell would have had to do something very specific, in using the duties of his office or state agencies, to advance the business interests of his friend, in return for all of those expensive favors.
What McDonnell actually did, his lawyers insisted, was nothing more than engaging in “everyday politics,” the kind of constituent contacts that every elected official is expected to, and does, have—especially a state governor seeking to bring business to the state. Unless the officeholder actually produced a government result for that constituent—actually pulled the levers of official power—and money or favors were exchanged for that, there could be no guilt, his attorneys contended.
But as the attorneys are preparing their case for the Supreme Court appeal, they are developing significant constitutional arguments around that basic claim. They are arguing that the governor’s due process rights were violated because he could have had no idea that what he was doing would be treated as criminal; that the First Amendment right to petition one’s government for action was scuttled; and that the Constitution’s protection of the federalist system, with its respect for states’ rights, was cast aside by prosecutors seeking to make a federal case out of conduct that did not violate state law in any way.
The legal defense team has some reason for optimism that the Supreme Court will take an interest, given what it has done in crafting some limits on public corruption prosecutions. And recasting his case as a major constitutional fight may also enhance the appeal, inviting the Justices to go beyond simply analyzing what the words in the fraud laws mean.
