Twitter has come to play a central role in political discourse. Just last week, during a Supreme Court argument in a First Amendment case, Justice Kagan observed that “everybody uses Twitter”: In addition to “the President,” Justice Kagan explained, “[a]ll 50 governors, all 100 senators, [and] every member of the House has a Twitter account,” which has made Twitter a “crucially important channel of political communication.”
Given the important role Twitter has come to play in politics, federal prosecutors may soon face the question of whether a tweet from a public official qualifies as the kind of “official act” that can give rise to a corruption prosecution. The preliminary answer to this question may lie in two of the Supreme Court’s decisions from last term: McDonnell v. United States and Ocasio v. United States. Although Justice Roberts’s opinion in McDonnell received widespread attention for narrowing the definition of “official act,” it is Justice Alito’s opinion in Ocasio that could well serve as the key precedent in this area.
By way of background, the federal statutes prosecutors most commonly use to pursue bribery and kickback cases—the honest services fraud statute, the federal programs bribery statute, the Hobbs Act, and the Travel Act—all generally require prosecutors to prove that a public official engaged in an official act in exchange for something of value.
What qualifies as an official act? The best starting point is the definition the Supreme Court offered in McDonnell: “an ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy.’” To meet this definition, according to McDonnell, the act “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” and “also be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.” Further, “[t]o 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.”
McDonnell allows prosecutors some flexibility by acknowledging that an “official act” would include a public official “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.” At the same time, McDonnell makes clear that an “official act” does not include “[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more.”
If McDonnell were the last word on the definition of “official act,” it is difficult to envision a scenario in which a tweet would ever qualify. After all, tweets generally are not “formal exercise[s] of governmental power” akin to lawsuits, agency decisions, or committee hearings. Further, standing alone, most political tweets will not qualify as a “use” of an “official position to exert pressure on another official to perform an ‘official act.’”
The Supreme Court’s decision in Ocasio, however, can be read to supplement McDonnell with an additional category of official acts—a category that could well include certain tweets. In Ocasio, the petitioner was a former police officer who had been part of a kickback scheme in which he and other police officers sent cars that were damaged in accidents to a particular repair shop in exchange for payments from the owners of that repair shop.
The issue presented to the Supreme Court in Ocasio was not focused on official acts. Rather, Ocasio argued that a Hobbs Act conspiracy conviction should require proof that the conspirators agreed to obtain property from someone outside the conspiracy, that is, from someone other than the shop-owners in Ocasio’s case—a showing he claimed the government failed to make. But the Supreme Court rejected that argument and affirmed the conviction.
From The Insider Blog: White Collar Defense & Securities Enforcement.