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OpEdNews Op Eds    H2'ed 7/5/16

Supreme Court Legalizes Influence Peddling: McDonnell v. United States

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This new definition, partly due to its creation of confusion where none existed before, does succeed in legalizing more corruption. As one experienced court-watcher observed, McDonnell "poses a major challenge to prosecutors seeking to police official misconduct." The NYT and its legal sources agreed that " the decision would make it harder for the government to prove corruption ." This can only increase further the current three-quarters of Americans who perceive corruption as already widespread throughout government.

The Court arrives at its own boundary separating the newly legalized from the still illegal official acts by logic-chopping its way through pages of unconvincing analysis of the statute and the trial court's implementing jury instructions. Through its complex analysis the Court arrives at some vague subset of official activities that the Court deems to be exempt from prosecution under the bribery statute, as well as some new complicated jury instructions that are different than the law, and are designed to confuse the jury. The Court's new version of the law happens to exclude the kind of acts that Gov. McDonnell was proven to have committed, so he gets another chance for impunity before a new jury under the Court's new obfuscating rules and instructions.

There is no particular reason why any subset of official actions, if that is what the jury found the buyer in fact purchased, should not be prohibited from being sold to special interests. It is not up to the Supreme Court to determine in advance what kind of official act might be valuable to a plutocrat or will undermine representative democracy by means of honest services fraud. That definition was the legislators' job.

The Court's opinion by Chief Justice Roberts, who has written most of the Court's steady output of pro-corruption decisions over the past decade, concludes, without much honest support, that under "the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we ... adopt a more bounded interpretation of 'official act.' Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an 'official act.'"

As for the Court's "precedent" excuse, it mainly consists of dicta "stated" by Justice Scalia, in a 1999 corruption prosecution of the bribery of Bill Clinton's Agriculture Secretary Mike Espy. Scalia's extraneous dicta was persuasively shown to have been erroneous by the Government's Brief, 30. The Espy case actually ruled that an "official act of whatever identity" would suffice as an element of the crime, but that gifts given merely for reason of the official's position in the abstract, and not for any specific act at all, would not suffice.

The actual ruling in the Espy case is therefore entirely consistent with, and indeed supports, the broad definition applied in McDonnell where the purchased official acts were quite specific. Scalia meandered off into some uninformed speculation which the Court redeployed as if were precedent, but which it clearly was not. Meanwhile, copious actual precedent cited by the Government, 24 , and which was contrary to the Court's ruling, was either totally ignored by the Court, or inadequately explained away in the one case that could not be ignored. Far from "precedent" dictating the Court's decision, Roberts actually violated a century of precedent to reach his idiosyncratic new definition of official acts. The idea that the weight of "precedent" in the legal meaning of that term supports his decision is unsupported. He did not so much as mention any of the various contexts where the legal concept of "official duties" is applied without any suggestion of the pretext Roberts creates that it is too vague to be applied.

As for the "text of the statute" justification for his ruling, Justice Roberts ultimately landed on one of his trademark, completely absurd propositions that goes to the heart of the matter. Roberts tends to use this tactic in his most deceptive opinions. The heart of the matter in McDonnell is, as mentioned, to define some subset of politically marketable actions which fall within a politician's official capacity in any ordinary understanding of the term but which can nevertheless, for some reason, be defined as not being an "official action" in order to complicate the prosecution of influence peddling politicians. Roberts thus culminates his otherwise unpersuasive interpretation of the statute with respect to that essential issue with the following non-sequitur, masquerading as irrefutable logic: "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."

Well, no. In fact if "every action" within the scope of official duties, such as Governor McDonnell's promotional activities related to the proposed state-financed official research study that the buyer of McDonnell's influence specifically sought, "were an 'official act,'" as common sense dictates that it is, then it would mean that the "requirement that the public official ... take an action" in order to be prosecuted would be satisfied by any of those official actions that the jury found McDonnell did take that were related to facilitating the state funding of that study and were made pursuant to the underlying bribe agreement. It is Roberts' logic, not the text of the statute, that is "meaningless."

If Roberts stopped there, Congress could still amend the statute to expressly overrule Roberts' error of interpretation, misreading of precedent, and failure to carry out his sworn duty to enforce the intent of Congress. An amendment of the statute could make even more abundantly clear that the statute has for the past century, in fact, been intended to cover any and all official activities within the scope of a politician's official duties that a jury might find was purchased by a political investor. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (5-4) exemplifies a case where the Court's ideologically motivated misinterpretation of a civil rights provision was later overruled in this fashion. But as with the case of Shelby County (2013), which similarly gutted the Voting Rights Act by reviving discredited doctrine from the reviled Dred Scott decision, a deadlocked status-quo Congress can also easily block action to reinstate what was clearly the prior expressed intent of Congress after it has been erased from the statute books by judicial misinterpretation.

It is the nature of systemic corruption for legislators mired in it to be more engaged in the business of expanding the scope of corruption, alongside the Court, rather than taking any action to prevent corruption, by overturning the Court. But just in case a future Congress might be forced by public outrage to take more of a Ledbetter than a Shelby County approach, the Court goes to the next step to provide the corrupt Congress an excuse for inaction. This helps relieve the mounting pressure at the ballot box for Congress to do something effective about political corruption. Blaming the Constitution for tying its hands from doing the right thing always makes for convenient bipartisan excuses for the Kabuki performance of a corrupt Congress. Senator Ted Cruz, for example, has been a prominent defender of a "Bill of Rights" protection for political corruption against a strategically misguided pretense of changing the Constitution as the only means for anti-corruption reform.

Vaguely unconstitutional

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Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief n the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on legal (more...)
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