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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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Message Rob Hager

Madison called such conduct tyranny.

Judicial invention

As one of the bases for claiming the Government's interpretation of official acts is "boundless," Roberts invoked a trick the current Court has frequently employed, in Citizens United for example. At oral argument the Court will trick Government's counsel into making a broader claim than necessary to decide the case in court. The Government would make the claim so as not to unnecessarily concede a point that may be of use by the Government in future cases, but is irrelevant to the case at hand. Blindsided by this tactic, counsel might fail to anticipate that the Court will utilize the broader, but irrelevant, claim as grounds for illegitimately adjudicating a hypothetical case about "implications" the Court deems encompassed by the claim.

In McDonnell this trick was invoked by Roberts to manufacture a hypothetical claim from the Government that an "official act" could be a premise for a bribery conviction if it "concern[ed] any subject, including a broad policy issue such as Virginia economic development." Such a hypothetical was of course irrelevant to McDonnell, which prosecuted bribery not intended to achieve any "broad policy issue" but rather a very special interest of virtually unique value to the briber's own dietary supplement business interest, and probably to no one else at all.

In support of his proposition that the Government committed the tactical error of making a much broader claim about the objective of McDonnell's official acts and of the bribe he took than was necessary to win its case, Roberts provides two references. One is to the Government's Brief and the other to its oral argument. On closer inspection Roberts' assertion is revealed as not the Government's, but his own invention. He lied.

The transcript of the oral argument does not indicate that such an assertion was ever made by Government's counsel. The truth is that the Deputy Solicitor General Dreeben made a fairly masterful presentation of the case that did not include any such claim that Roberts' dishonest reference to the Transcript page of the oral argument suggested that he did make there. Indeed at another point in the Transcript from that cited by Roberts, Roberts did try using his trick on Dreeben by asking him about "jobs for Virginia." "Bob's for Jobs," was McDonnell's campaign slogan. This was the only discussion at oral argument even relevant to the "broad policy issue such as Virginia economic development." Tr. 44-45. Dreeben expressly refused to take Roberts' bait on the subject. Dreeben skillfully kept his argument at all times focussed on the facts of the case and the very narrowly identified special interest objective of the bribery.

By coincidence, after the argument, Deputy Dreeben's exceptional experience in oral argument and exemplary advocacy in the Supreme Court was formally recognized by the Court on the occasion of his having completed a rare 100th Supreme Court argument. This happened to underline the skill of his argument on that same day which did not include the kind of tactical mistake that Roberts dishonestly attributed to him anyway.

Roberts also cites the Government's Brief for support of this assertion that the Government contended that an official act "concerning a broad policy issue" could constitute the object of a bribery prosecution. But this is a gross misreading of the Brief. The Government mentions Governor Bob McDonnell's interest in the broad policy of economic development as evidence to define "the scope of petitioner's official duties," 48, not as the hypothetical objective of prosecutable "official acts" given as a policy quo in return for a pecuniary quid. The Government quite specifically described the subject of the official acts related to the bribery offense as the narrow special interest that it was. But the Government noted that this narrow interest which was the objective of the bribery fell within the broader scope of the governor's frequently proclaimed official duties which he had indeed defined as a core objective of his administration. The Government needed to situate the promotion of the briber's business within the Governor's broad definition of his official duties.

The objective of the official acts charged as the quo element of McDonnell's bribery related to a very particular instance of the broad "Bob's for jobs" subject of economic development. The Brief was clear about this. It could not reasonably have been mistaken that the Government's purpose in mentioning this one "broad policy issue" was solely to make the obvious point that it could not be disputed that the scope of the governor's duties in this general area fully encompassed the narrowly special interest objective of the bribery. After his lie about Dreeben's argument, Roberts' mischaracterization of the Brief -- portraying it as if the Government contended there that acts regarding solely a broad policy area, rather than a narrow special interest, could be the subject of prosecution -- can only be taken as equally dishonest.

Roberts' dishonest characterization of the Government's position elides the difference between advocates of the broad public interest who do not personally profit from their advocacy beyond participation in the general benefits anticipated for the public, and special interests who do uniquely profit by buying special interest policies, and can then kick-back a share of those profits into the pockets of politicians. Generally "a broad policy issue" would not generate profits that can be corruptly channeled to special interests from which they can in turn be shared with influence peddlers. Therefore advocacy of such general policies cannot be considered within the sphere of what would properly be considered as corruption.

Roberts' gratuitous insertion of this issue in the case, without discussion of this important difference, intentionally created a false impression, without expressly saying, that the government's position on potential objects of its prosecutorial power might be so broad as to exceed the proper bounds of what could fairly be described as corruption. It turns out however to be just another example of Roberts' pervasive dishonesty.

Usurpation of Separate Powers

Roberts imagines other hypothetical cases that might arise under "the Government's boundless interpretation," (an inherently preposterous characterization for acts clearly restricted to those that only public officials can make). These cases were invented by himself without any basis in fact.

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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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