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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

The deceptive impression Roberts seeks to give is that "commonplace requests" or "most prosaic interactions" by citizens who have, presumably, endowed more modest benefits on an official than McDonnell's benefactor did, would involve only pursuit of "general policy" reforms from which special interests could not harvest the profits. No such case has been charged, tried, reached a conviction by a jury, and pursued on appeal to the Supreme Court as is required by the Constitution for the Court to decide it.

Roberts nevertheless strikes down part of the bribery statute because of an imagined application of a phoney "boundless" interpretation to some other such case, not to the McDonnell case. No other criminal but a corrupt politician could get off the hook by showing that some other totally imaginary person could not be constitutionally prosecuted under the statute he has been found guilty of violating -- without expressly invoking the First Amendment overbreadth doctrine, that is.

The Court is only empowered by the Constitution to decide whether the bribery law constitutionally applies to the admittedly tawdry facts of Mr. and Mrs. McDonnell, not whether it can be applied to a vague and hypothetical "commonplace" or "most prosaic" case, as well. Roberts used this same tactic in Shelby County to gut the Voting Rights Act, similarly making future enforcement of the law more challenging, on account of some other imagined applications to which the Act might apply, rather than confining himself to the actual case before him concerning Shelby County, Alabama.

One scholar writes: "Where Congress is convinced that the Court has attempted to alter the Constitution under the guise of interpreting it, Congress has an oath-sworn duty to uphold the Constitution and resist the abuse." Both McDonnell and Shelby County are blatant violations of the Constitution's separation of powers. These violations are tolerated by Congress because it is at once, respectively, too systemically corrupt and too Jim Crow racist to defend its own powers in such cases. As was said by the influential political philosopher Adam Ferguson, ( 1767 ) p. 482, about separated powers, "if any member is remiss, the others must encroach." Congress is remiss, and the Court therefore encroaches upon its powers to extend the corrupt rule of plutocrats.

Roberts the juror

Those "most prosaic interactions" hypotheticals that trouble Roberts would generally be taken care of by the quid pro quo requirement for bribery prosecutions. A reasonable jury in a bribery case must find on sufficient evidence that the quid given was in fact the agreed incentive for the quo provided in return. Roberts writes: "A jury could, for example, conclude that an agreement was reached if the evidence shows that the public official received a thing of value knowing that it was given with the expectation that the official would perform an 'official act' in return."

The fact that there are other cases that might be charged under the statute which factually involve both quid s and quo s, but which fall below this standard of proof that there was an underlying transaction connecting the two elements of the crime provides no excuse for the Court's McDonnell decision where the jury necessarily did find that there was such an underlying agreement. Roberts' argument constitutes a typically dishonest excuse for changing the law without valid reason to do so, because the hypothetical case he fears would be unlikely in the extreme to ever reach the Court for reasons that he does not take into account and which are also unrelated to his own proposed remedy for a problem of his own invention.

The potential factual weakness of some other hypothetical case cannot immunize whole categories of valuable "official action" that may in some, but not all or necessarily most, cases be associated with favors and requests so insignificant that a jury would reasonably conclude that they were not the product of quid pro quo agreement. But immunize is what Roberts did anyway as if acting as a meta-jury for all future possible prosecutions that occur primarily in his own imagination. But the conduct he immunized deliberately goes way beyond what a reasonable jury would find to have been a sale of valuable official power, as for example the jury in the McDonnell case properly found.

Unanimous corruption

The most worrisome development that McDonnell signals is that Roberts' transparently deceptive opinion outsmarted all four of the justices who, as recently as in Arizona Free Enterprise Club (2011), American Tradition Partnership, Inc. v. Bullock (2012), and McCutcheon (2014) (all 5-4 decisions), had opposed the extension of Buckley's "money is speech" First Amendment protection for unimpeded influence buying. In McDonnell, Roberts has for the first time successfully recruited all four liberals to his judicial supremacist pro-corruption project in order to protect the plutocracy by impeding the prosecution of their paid influence peddlers.

Last year it was in Williams-Yulee v. The Florida Bar (2015) (5-4) that Roberts had partly succeeded in this same project of consolidating liberal support on the Court behind political corruption. There he divided the usual four dissenters in a ruling so insignificant that he could join these liberals in order to accomplish his goal. Writing the majority decision for the liberals and himself in a "money is speech" case, Roberts held that elected state judges "cannot say, 'Please give me money.' They can, however, direct their campaign committees to do so." By making this legalistic distinction that makes no substantive difference to the quantum of judicial corruption, Roberts' opinion, as a commenter in the Atlantic observed, "upheld a very narrow reform measure, but at the same time made further reforms marginally harder to enact."

In 2015 Roberts was able to recruit Obama's two appointees, Justices Sotomayor and Kagan, to join his The Florida Bar opinion for the purpose of strongly reconfirming the atrociously corrupt decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (5-4), the case that legalized campaign finance corruption of elected state judges. These two Obama deserters to Roberts' pro-corruption agenda declined to join Justice Ginsburg's separate decision based on the premise that "Judges are not political actors" who may be subjected to the same rules which have corrupted the political branches. Ginsburg restated her persuasive dissent from White, which in 2002 had been joined by four justices, that judges should not be subjected to the same "money is speech" regime as politicians are under Buckley. That the corrupt Buckley regime has become far more corrupt since 2002, due to the successful mission of the Roberts Court, made Ginsburg's arguments even more forceful in 2015 than they had already been in 2002.

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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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