The Supreme Court appears to be leaning in favor of reversing the corruption conviction of former Virginia Gov. Bob McDonnell, based on Wednesday's oral arguments.
At the case's core is how to determine a clean "official act" from a corrupt one, and where the line is.
Justice Elena Kagan said during oral arguments that the court is concerned both about overzealous prosecutors and giving a free pass to corrupt politicians.
Many of the justices — both liberal and conservative — appeared dissatisfied with the standard that the government is currently using to seek convictions on public corruption charges.
Justice Stephen Breyer said he doesn't want a situation where all of the power is in the hands of the Justice Department to decide who is prosecuted for a felony and who is not.
"Official acts" covers a broad range of activities that are part of doing business as a politician — from writing a letter asking a federal agency to look into an issue to attending meetings and attending social events.
The justices brought up dozens of theoretical examples to illuminate just how difficult it is to determine what constitutes a felony:
- Is it a felony for someone to give a government official $1,000 to attend a meeting with a group of officials? According to the government, it is — it's pay-to-play. But the other side says it's not, because the person paying isn't actively seeking to shape a government decision.
- What if a governor goes fishing with the CEO of a company who wants to discuss tax deferral programs? What if that same CEO suggests a weeklong trip to Hawaii where the governor can bring his family and they can discuss those tax deferrals? Is this obtaining something of value in exchange for influencing government policy?
The justices seemed to be seeking a federal standard that could be administered — and didn't appear satisfied with any of the suggestions presented.
Ultimately, everyone in the room appeared frustrated at the difficulty of coming up with a standard that's narrow enough to exclude ordinary correspondence between politicians and federal agencies on behalf of their constituents or companies but would penalize people who take bribes.
As you may have heard on Morning Edition, this case stems from favors that McDonnell and his wife did for a Virginia businessman in exchange for loans and luxury gifts.
The businessman, Jonnie Williams, was seeking FDA approval for a dietary supplement made by his company, Star Scientific. Because he couldn't afford scientific testing, he wanted two Virginia universities to carry out the research. Here's more:
"Soon, the governor's wife would ask Williams for a $50,000 loan, which he provided, plus help in defraying the costs of their daughter's wedding. Williams called the governor to confirm that he knew about the loan, and McDonnell thanked the businessman for his financial assistance. Three days later, McDonnell instructed an aide to forward material about Williams' company to Virginia's secretary of health. ...
"But, importantly, the research sought by Star Scientific never actually took place.
"None of the gifts to the McDonnells were illegal under state law, but the federal government eventually charged McDonnell and his wife with 11 counts of conspiracy to commit fraud under federal law. McDonnell himself was accused of depriving the state's citizens of his honest services by accepting bribes in exchange for performing 'official acts' to benefit Williams' company.
"McDonnell said from the get-go that while his judgment had been in error, he did nothing illegal."
The government argues that McDonnell's actions were clearly corrupt, while the defense lawyers say they were simply "routine political activities."
Speaking to reporters outside the court, McDonnell said, "I want to say, as I've said for the last 39 months, that never during any time in my last 38 years of public service have I ever done anything that would abuse the powers of my office." He added: "I know the justice system will get this right."
The justices will meet Friday to vote on the case. They're expected to rule at the end of June.
KELLY MCEVERS, HOST:
At the U.S. Supreme Court today, justices appeared to be ready to throw out the conviction of former Virginia Governor Bob McDonnell on corruption charges. It's a step that federal prosecutors have warned could crippled their ability to bring crooked politicians to justice. NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: In an era when the public is suspicious of political insiders, it was odd today to see a majority of Supreme Court justices apparently less worried about a pay-to-play system of government and more worried about the possibility that prosecutors would target routine political activity. At issue was the jury conviction of former Virginia Governor Bob McDonnell on corruption charges, namely accepting $120,000 in undisclosed loans and tens of thousands of dollars in luxury gifts in exchange for using his influence as governor to help his benefactor Johnnie Williams.
Williams' company had developed a dietary supplement that would've been worth much more if it were approved as a pharmaceutical by the FDA. Winning that approval, however, required expensive clinical testing, and Williams couldn't afford it, so he wanted the research conducted instead by two prestigious Virginia universities. And he enlisted McDonnell's help.
At the same time, McDonnell and his wife were soliciting and receiving loans and gifts from Williams, the governor was ordering top health officials to meet with Williams, hosting a luncheon at the governor's mansion to lunch Williams' product and setting up contacts for Williams with university faculty members.
Ultimately, though, the medical faculty resisted doing the research, and a jury convicted McDonnell of using his office for corrupt purposes. McDonnell, whose prison sentence is on hold pending the outcome of his appeal, was at the Supreme Court today.
(SOUNDBITE OF ARCHIVED RECORDING)
BOB MCDONNELL: Never during any time in my 38 years of public service have I ever done anything that would abuse the powers of my office.
TOTENBERG: Inside the court chamber, his lawyer, Noel Francisco, urged the justices to reverse the conviction because the trial judge did not adequately define what official actions McDonnell took in exchange for Williams' largess. The line between what's legal and illegal, he said, is a line between granting access to decision makers versus actually influencing their decisions.
But that line soon looked blurry as the justices peppered Francisco with hypotheticals. Justice Alito - could a governor offer access to a staff meeting for a price? Answer, yes - to make it criminal, there has to be some official government act. In this case, said Francisco, all the government did was to make a referral, and that does not cross the line.
That depends on who's making the referral or the call, said Chief Justice Roberts. If a congressman makes the call, that's no big deal, but if the president asks for a matter to be looked at for a constituent, that might have considerably more influence.
The Justices reserved their really aggressive questioning, however, for the government's advocate Deputy Solicitor General Michael Dreeben. Dreeben opened by asking the court to consider the consequences of the defense's, quote, "pay-to-play theory of government" - in essence that it's perfectly legal to pay for access.
Justice Breyer - but if we allow the criminal law to go as far as you want, the Department of Justice will become the ultimate arbiter of how public officials are behaving in the United States, and giving that kind of power to a prosecutor is dangerous. So we need limits on both sides even though the line won't be perfect and will fail to catch some crooks. Chiefs Justice Roberts was even more draconian, suggesting that perhaps the main federal anticorruption laws are inherently so broad as to be unconstitutional.
The government's Dreeben reacted with uncharacteristic fury. It would be absolutely stunning if this court said that bribery and corruption laws which have been on the books since the beginning of this nation, have been consistently enacted by Congress - interrupted Justice Kennedy - absolutely stunning to say that the government has given us no workable standard? We've given you a workable standard, replied Dreeben, based on this court's decisions dating back to 1914 and going up through current times.
But at the end of the day, only Justice Sotomayor, a former prosecutor, and Justice Ginsburg seem to be buying the government's argument. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.