Why it matters: On June 27, 2016, the Supreme Court decided McDonnell v. U.S., holding that, for purposes of the federal public corruption statutes, an “official act” consists of a concrete decision or action taken with respect to a proceeding pending before a court, agency or committee, and that merely setting up a meeting, talking to another official or organizing an event are not, by themselves, enough to qualify. The opinion sets the stage for a possible dismissal by the trial court of the convictions against former Virginia governor Robert F. McDonnell if the evidentiary record below fails to sustain a finding that his actions constituted “official acts” in light of the Court’s ruling.
Detailed discussion: On June 27, 2016, the Supreme Court decided McDonnell v. U.S., holding that an “official act” for purposes of the federal bribery, Hobbs Act and “honest services” statutes consists of a concrete decision or action taken with respect to any proceeding pending (or that by law may be brought) before a court, agency or committee (or other “formal exercise of governmental power”), and that merely setting up a meeting, talking to another official or organizing an event are not, in and of themselves, enough to qualify.
To briefly review the facts, former Virginia governor Robert F. McDonnell (McDonnell) was convicted and sentenced to 24 months in prison on eleven counts of public corruption under the federal bribery statute (18 U.S.C. § 201), the Hobbs Act (18 U.S.C. § 1951) and the federal “honest services” statute (18 U.S.C. § 1346) for “gifts” he and his wife accepted from a Virginia businessman (e.g., lavish vacations, golf outings, expensive watches and clothes, “sweetheart” loans, etc.). These gifts were allegedly in exchange for McDonnell using the governor’s office and his official position and influence to benefit the businessman’s tobacco-derived dietary supplement business, including arranging meetings for the businessman with state officials, hosting receptions for him at the Governor’s Mansion and placing calls to state university and government officials regarding research studies for the supplement so as to hasten FDA approval. The Fourth Circuit affirmed the district court’s conviction on July 10, 2015 (McDonnell’s wife was also convicted for public corruption and sentenced to 12 months in prison, although her case is presently on hold at the Fourth Circuit pending resolution of her husband’s case).
The Supreme Court granted certiorari and heard oral argument on April 27, 2016 (we covered the oral argument in our June 6, 2016 newsletter). Much of the discussion focused on the issue of what constitutes an “official act” under the federal public corruption statutes because, in order to convict McDonnell under those statutes, the government had to prove that he committed “official acts” in exchange for bribes. The operative definition of “official act” for purposes of the lower court proceedings can be found in Section 201(a)(3) of the federal bribery statute, which defines an “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”
In a unanimous decision written by Chief Justice John Roberts, the Court held that, under Section 201(a)(3):
[A]n “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.”
In reaching this holding, the Court pointed out that the text of Section 201(a)(3) sets forth two requirements for an “official act” and analyzed each one in turn: “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.” The question presented by this case, according to the Court, was “whether arranging a meeting, contacting another official, or hosting an event—without more” falls under either of these categories.
Looking to the first requirement, the Court rejected the Government’s argument that Congress intended an “official act” to broadly encompass “nearly any activity by a public official” from “workaday functions, such as the typical call, meeting, or event, to the broadest issues the government confronts, such as fostering economic development.” The Court opted instead for a more “bounded” interpretation, concluding after parsing the text of the statute and looking to Supreme Court precedent and constitutional arguments raised by McDonnell that “the terms ‘question, matter, cause, suit, proceeding or controversy’ do not sweep so broadly.”
The Court explained that “[a]lthough it may be difficult to define the precise reach of those terms, it seems clear that a typical meeting, telephone call, or event arranged by a public official does not qualify as a ‘cause, suit, proceeding or controversy.’ ” Nor did the Court believe that they fell under the category of a “question” or “matter,” concluding that “a ‘question’ or ‘matter’ must be similar in nature to a ‘cause, suit, proceeding or controversy.’ Because a typical meeting, call, or event arranged by a public official is not similar to a lawsuit before a court, a determination before an agency, or a hearing before a committee, it does not qualify as a ‘question’ or ‘matter’ under §201(a)(3).”
The Court next looked to the second requirement that the public official makes or agrees to make a decision, or takes or agrees to take an action, “on” the question, matter, cause, suit, proceeding, or controversy from the first inquiry. The Court acknowledged that the Fourth Circuit had identified three specific focused and concrete “questions” or “matters” that qualified under the first requirement of Section 201(a)(3) because they involved “a formal exercise of governmental power that is similar in nature to a lawsuit, administrative determination, or hearing,” including the question of whether state officials and University of Virginia researchers would initiate a study of the businessman’s nicotine supplement in order to hasten FDA approval. The Court stated, however, that “hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a ‘decision or action’ within the meaning of §201(a)(3), even if the event, meeting, or speech is related to a pending question or matter. Instead, something more is required: §201(a)(3) specifies that the public official must make a decision or take an action on that question or matter, or agree to do so.” (Emphasis in original.) Citing specifically to the contact with the University of Virginia researchers and other government officials, the Court said that “[s]imply expressing support for the research study at a meeting, event, or call—or sending a subordinate to such a meeting, event, or call—similarly does not qualify as a decision or action on the study, as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an ‘official act.’ Otherwise, if every action somehow related to the research study were an ‘official act,’ the requirement that the public official make a decision or take an action on that study, or agree to do so, would be meaningless.”
Further, the Court agreed with McDonnell that “the Government’s expansive interpretation of ‘official act’ would raise significant constitutional concerns,” citing to specific issues of due process, vagueness and federalism (McDonnell’s actions were not a crime under the Virginia public corruption statute). The Court acknowledged that the federal bribery statute prohibits quid pro quo corruption, i.e., the exchange of a thing of value for an “official act”; however, the Court said that, under the Government’s expansive view, “nearly anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and nearly anything a public official does—from arranging a meeting to inviting a guest to an event— counts as a quo.” This raised substantial concerns for the Court because:
[C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.
(Emphasis in original.)
Finding that “[b]ecause the jury was not correctly instructed on the meaning of ‘official act,’ it may have convicted Governor McDonnell for conduct that is not unlawful,” the Court vacated McConnell’s convictions and remanded the case back to the district court to see whether, in light of the Court’s opinion, the evidentiary record supports a new trial or whether dismissal is in order. The Court concluded:
There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term “official act” leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.
See here to read the Supreme Court’s 6/27/16 opinion in McDonnell v. U.S.