Like political campaign contributions, lobbying was part of the “[P]alytic” process over millennia. The difference between trying to influence public policy decisions, including the awarding of contracts, and bribery has never been clearer. In America, one is legal, the other is illegal.
U McDonnell v. United States, 579 US ____ (2016), the US Supreme Court reminded prosecutors that the line is not always where they say it is, effectively raising the bar in public corruption cases. This term, the court is hearing a similar case involving allegations against an aide to former New York Gov. Andrew Cuomo.
Allegation of corruption requires an official act
The McDonnell The decision comes in the wake of honest services fraud and Hobbs Act extortion charges against former Virginia Gov. Robert McDonnell and his wife, Maureen McDonnell. The allegations related to receiving loans, gifts and other benefits from Virginia businessman Johnny Williams while Governor McDonnell was in office.
To convict the McDonnells, the prosecution had to prove that Governor McDonnell did (or agreed to do) an “official act” in exchange for loans and gifts. There is an “official act”. defined under 18 USC §201(a)(3) as “any decision or action upon any question, cause, action, suit, proceeding or controversy which may at any time be pending or which may by law be brought before any public officer in his official capacity as such officer or official of a place of trust or profit”.
Prosecutors alleged that Gov. McDonnell took at least five “official acts,” such as “arranging meetings” for Williams with other Virginia officials to discuss his product, “arranging” events for Williams’ campaign at the governor’s mansion and “contacting other state officials.” . ” relating to company research. McDonnell, however, argued that such actions were political courtesies and did not constitute the use of his position to influence public affairs.
In a unanimous decision, the US Supreme Court rejected a broad interpretation of the term “official act” by federal prosecutors. As Chief Justice John Roberts wrote:
An “official act” is a decision or action on a “question, case, cause, suit, proceeding, or controversy.” The matter or matter must involve the official exercise of governmental authority, and must be something specific and purposeful that is “pending” or “may by law be brought” before a government official. To qualify as an “official act,” a public official must decide or take action on the matter or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event—more than that—does not meet this definition of “official act.”
In issuing its decision, the Supreme Court noted that the government’s expansive interpretation of “official act” would cover almost all actions with voters. “[T]The government’s expansive interpretation of the term “official act” would cause serious constitutional problems… In the government’s view, virtually anything a public official accepts – from a campaign contribution to a dinner – is considered pounds sterling; and almost everything a government official does – from arranging a meeting to inviting a guest to an event – counts quo– wrote the Chairman of the Supreme Court. “But conscientious state officials organize meetings for voters, communicate on their behalf with other officials, constantly include them in events. The basic compact that underlies representative government assumes that public officials will listen to their constituents and respond to their concerns – whether it’s a union official worried about a plant closing or homeowners wondering why it took five days to restore power to their neighborhood after the storm.”
The court also expressed concern that such a broad interpretation of “official action” discourages public engagement with elected officials. ““The government’s position could cast a veil of potential prosecution over that relationship if the union had made a campaign contribution in the past or if the homeowners had invited the official to join them on their annual trip to the ball,” Chief Justice Roberts wrote. “Officials may wonder if they can respond to even the most mundane requests for help, and citizens with legitimate concerns may refuse to participate in democratic discourse. This concern is significant.”
Recent issues in the Supreme Court
The latest state corruption case before the Supreme Court is that of Joseph Percoco, who served as Governor Cuomo’s re-election campaign manager when he was allegedly paid $35,000 to help the developer deal with state red tape. The Second Circuit Court of Appeals found that Percoco owed a duty of good faith to the community because, as a former high-ranking employee and longtime friend of the governor, he continued to exercise “influence” in state agencies and officials. However, Percoco argued with his own petition for judicial order that he is only the latest victim of the prosecutor’s abuse.
The Supreme Court heard oral arguments in the case on November 28, 2022. The justices agreed to consider the following question: “Whether a private citizen who does not hold elected office or public service but has informal political or other influence over government decisions — by doing, owes a fiduciary duty to the public at large, so he can be convicted of honest services fraud.”
With the Supreme Court once again poised to clarify the scope of the honest services fraud statute, it would not be surprising to see the justices once again limit the government’s power to prosecute under the statute.