What are the limits of a government official’s conduct being considered an “official action,” and what implications do these limits have on jury instruction and the constitutionality of the Hobbs Act and the honest-services fraud statute?
In this case, the Supreme Court will decide whether an “official action” is limited to exercise of actual government power. In light of this determination, the court will then decide whether the honest-services statute and Hobbs Act sufficiently define official actions to comply with the Constitution. Robert McDonnell argues that official actions should be limited to the actual exercise of government power and that his conduct as governor was never an exercise of actual government power. Thus, McDonnell argues that his conviction should be overturned on the merits, but he also argues that the trial court’s jury instructions were erroneous based on a flawed definition of “official action” given to the jury. In addition, McDonnell argues that the honest-services statute and Hobbs Act are unconstitutionally vague. The United States argues that McDonnell construes the definition of official action too narrowly, and that a proper interpretation encompasses McDonnell's conduct in this case. United States rejects McDonnell’s jury instruction arguments based by noting that these instructions included a precise definition of “official action” from the statute, with additional information to clarify the definition. Finally, the United States rejects McDonnell’s constitutional challenges by citing a recent and similar Supreme Court challenge to these statutes that failed.
Questions as Framed for the Court by the Parties
Is “official action” limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and must the jury be so instructed; or, if not so limited, are the Hobbs Act and honest-services fraud statute unconstitutional?
Petitioner Robert McDonnell was elected the governor of Virginia in 2009. This case concerns contact McDonnell had with Jonnie Williams, who was CEO of Star Scientific, and the subsequent fraud charges brought by the government against McDonnell.
The Supreme Court will decide whether the exercise of actual government power is necessary for an act to be considered an “official action.” The Court will also determine the validity of the lower court’s jury instructions and whether two federal corruption statutes are unconstitutional. McDonnell argues that the constitution requires that federal corruption statutes be read narrowly to limit an official’s liability, which entails official actions being limited to the exercise of actual government power. Further, McDonnell contends that because the honest-services statute and Hobbs Act provide “no practical guidance,” they are unconstitutionally vague. In response, the United States argues that the determination that an action is within one’s official duties is what is needed to identify an official act. The United States maintains that official duties include exercising the ability to influence others, which is what occurred in McDonnell’s case.
CONSTITUTIONAL GUIDANCE ON “OFFICIAL ACTIONS”
First, McDonnell points to constitutional principles for guidance on how to interpret federal corruption statutes. McDonnell cites Skilling v. United States, 561 U.S. 358 (2010), in support of the proposition that the Constitution requires criminal statutes be read narrowly. In particular, McDonnell cites Skilling to argue that due process requires “sufficient definiteness” before criminal liability can be imposed on individuals, which requires a conservative reading of criminal statutes. Thus, as the honest-services statute and Hobbs Act do not mention bribery or “official action,” McDonnell argues that a narrow reading requires official action to be limited to exercise of actual government power. McDonnell also argues that a broad reading of these statutes to impose liability without the exercise of actual government power could implicate First Amendment rights. McDonnell contends that the government cannot criminalize the financial support donors provide for candidates without infringing on the First Amendment rights of those donors.
The United States argues that the concerns raised in Skilling are irrelevant in interpreting these statutes, because the statutes have already been interpreted in Supreme Court cases to include the exercise of influence. In particular, the United States points to United States v. Bencivengo, 749 F.3d 205 (3d Cir. 2014), for the proposition that “the mere agreement to exercise influence is sufficient to sustain a conviction for extortion under the Hobbs Act.” The United States also argues that the intent of bribery and corruption statues urges a broad reading, because they are meant to capture a range of dishonest behavior. The United States points out that this broad reading is necessary because it would permit an official to be found guilty of accepting a bribe for an action, even if that official would have taken that action anyway and it is in the public interest.
CONSTITUTIONALITY OF THE FEDERAL CORRUPTION STATUTES
McDonnell argues that the honest-services statute and Hobbs Act are unconstitutionally vague. First, McDonnell points out the Court’s decision in Skilling, in which the honest-services statute was confined to “the bribe-and-kickback core” of traditional corruption law. McDonnell contends that his conviction represents an expansion of this traditional core, and the honest-services statute expansion provides no reasonable guidance to elected officials in similar positions. Because of this lack of guidance, McDonnell asserts that the statute is unconstitutionally vague. McDonnell also maintains that the Hobbs Act is unconstitutionally vague as applied in this case. McDonnell grounds this claim by contending that he was not given fair notice from the statute that his conduct would be criminal. McDonnell argues that the benefits he provided in exchange for the five alleged official actions were legal under state law, so he had no reason to believe that he would be sanctioned by these federal statutes.
The United States rejects McDonnell’s challenges to the constitutionality of the federal corruption statutes based on vagueness because of the statute’s mens rea requirement and limitation to cases of “bribe and kickbacks.” The United States points out that similar vagueness arguments were brought in the Skilling case just five years ago, and the Supreme Court soundly rejected such challenges. Finally, the United States also points out that McDonnell cannot claim that he did not have adequate notice that his conduct would be illegal; McDonnell now admits that he knew that his conduct was improper at the time he was committing the official actions in question.
McDonnell also argues that the five specific actions alleged by the government are insufficient as a matter of law. In particular, McDonnell notes that none of these actions affected a particular government decision. Further, McDonnell emphasizes the fact that he never made an “ask” during the alleged official actions. Even with respect to the final alleged official action, McDonnell’s request for two subordinates to meet with Star Scientific, McDonnell did not direct the subordinates to make any decision on behalf of the government. McDonnell maintains that the most he gave to Williams and Star Scientific through these actions was time from government officials, which does not rise to the level of official action.
The United States argues that a broad reading of what constitutes an official action is appropriate. The United States relies on United States v. Birdsall, 233 U.S. 223 (1914), to emphasize this point. The United States acknowledges that Birdsall was decided over a century ago, but points out that the Supreme Court was interpreting identical language to the current corruption statutes at issue in this case. The United States cites the Court’s interpretation of that language in Birdsall, which held that an official act contained “[e]very action that is within the range of official duty.” The United States then points to similar actions taken by public officials who were found guilty under these statutes to suggest that McDonnell’s conduct falls into this category. For instance, the United States gave the example of a military officer accepting payments to recommend disposing of certain excess military property.
McDonnell argues that because his conviction depended on whether his conduct regarding Star Scientific and Williams constituted official actions, it was necessary for the jury instructions to differentiate what an official act is from what it is not. McDonnell contends the trial court’s jury instruction made no meaningful distinction in this regard. Specifically, McDonnell takes issue with the lack of limits on what an official act could include. McDonnell points out that the jury instructions only contained direction on what official actions were, omitting the defense’s proposed instructions which illustrated what the definition of an official act should exclude. In addition, McDonnell maintains that the jury instructions impermissibly expanded the definition of official act in 18 USC § 201 in three ways. First, the instructions focused on whether an action was “customary” to determine if it was official, which is irrelevant in McDonnell’s view. Second, McDonnell claims that there is no reason, statutory or otherwise, for an act to become official merely because a bribe payer believes the recipient of the bribe holds some power over “a means to the end sought.” Finally, McDonnell disputes the part of the jury instruction that allows official action to include any step “in furtherance of long term goals,” as this would capture nearly all action of elected officials.
The United States rejects the arguments regarding the jury instructions in part because it maintains that the statutory definition of official act is clear and because the instructions in this case mirrored other circuits’ instructions. Further, the United States disputes McDonnell’s claim that the instructions expanded what constitutes an official action in any meaningful way. In particular, the United States contends that Birdsall properly allows for the determination of whether an action is customary to relate to whether it is considered an official action.
The Supreme Court will decide whether “official actions” are limited to exercise of actual government power, and subsequently whether two federal corruption statutes are unconstitutional. This case could potentially expand liability for government officials who participate in corrupt practices and could further develop the Court’s First Amendment doctrine, specifically with respect to campaign contributions.
WIDESPREAD LIABILITY FOR GOVERNMENT OFFICIALS
The American Center for Law and Justice (“American Center”), writing in support of McDonnell, argues that prosecution for corruption must be limited to quid pro quo corruption or the appearance of quid pro quo corruption. The American Center argues that the government is seeking to prosecute the influence or access, or merely the appearance of influence or access, which is impermissible considering that influence and access are part of the political process. In support of this point, a group of former federal officials join as amici to argue that many government officials would face liability for traditionally permissible acceptances of the following: campaign contributions, travel expenses, and minor gifts. Former Virginia Attorneys General also join as amici to argue that liability could extend for any favorable treatment given to a citizen. These amici maintain that if the Court upholds the Fourth Circuit’s decision, anything from introductions, invitations to one’s personal home, and even “simple nod[s] of approval,” would be subject to liability if a benefit was given.
The United States responds to McDonnell’s arguments concerning widespread liability for elected officials by pointing out that this case concerns personal payoffs, not campaign contributions. Further, the United States argues that there is a clear distinction between McDonnell’s conduct and permissible campaign contributions because campaign contributions generally do not involve a quid pro quo exchange of benefits for some type of action by the elected official. Instead, the United States argues, campaign contributions are given in the hope of securing some type of general appreciation, which is permissible in our legal system. Judicial Watch, Inc. and the Allied Educational Foundation, joining as amici in support of the United States, maintain that the Court should adopt the broadest possible interpretation of “official actions” to protect against public corruption by government officials.
THE FIRST AMENDMENT AND THE POLITICAL PROCESS
Amici writing on behalf of McDonnell argue that political speech will be chilled if the Court upholds the Fourth Circuit’s decision. Specifically, the James Madison Center for Free Speech (“Madison Center”), argues that explicit quid pro quo corruption is required to avoid violating the First Amendment. In support of this point, the Madison Center cites Citizens United v. FEC, 558 U.S. 310 (2010), as an example of the right of access and influence people may enjoy by donating money. In addition, the American Center argues that if the Court upholds the lower court decision, federal prosecutors could target political activity and speech that they do not agree with by bringing indictments. Because of this possibility, and the fact that the American Center believes that the criminal statutes were not unconstitutional as previously interpreted, the American Center argues that the Court must err towards a narrower reading of the statute.
The United States argues that McDonnell and supporting amici’s position regarding the First Amendment misinterpret the case law they rely upon. The United States points to Citizens United to emphasize that “quid pro quo arrangements” are generally unrelated to campaign contributions. The United States contends that an explicit agreement is required at the time of a campaign contribution to transform the contribution into corruption, and such an agreement is generally absent in the political process. Further, the United States maintains that considering the intent of the parties making the potentially corrupt agreement is critical and would further distinguish legitimate campaign contributions from the corruption punishable under the Hobbs Act and honest-services statute. The Brennan Center for Justice at N.Y.U. School of Law (“Brennan Center”), writing in support of the United States, asserts that a reversal of the Fourth Circuit’s decision would actually undermine the First Amendment and the integrity of the electoral process. The Brennan Center asserts that the First Amendment is meant to protect the “political voice” of Americans and that political corruption prevents government officials from effectively listening to and representing that voice.
To resolve this case, the Supreme Court must decide whether an official act necessitates the exercise of actual government power. Subsequent to this determination, the Court will also weigh in on the constitutionality of two major federal corruption statutes. This case has significant implications for elected official’s interactions with lobbyists and could also change how campaigns are financed. Generally, the access to elected officials that donors can obtain through donations will be significantly sanctioned or generally legalized.
• Adam Liptak, Justices to Hear Appeal by Bob McDonnell, Ex-Governor of Virginia, The New York Times (Jan. 15, 2016).
• Jonathan Stahl, Supreme Court to hear Virginia governor corruption case, Constitution Daily (Feb. 2, 2016)
• Greg Stohr, U.S. Supreme Court Takes On Public Corruption With McDonnell Case, Tribune News Service (Jan. 18, 2016).