The government makes several points in response. First, the government says, the judge did not use the term “settled practice” as a substitute for the statutory definition of “official act.” Rather, after reciting that definition twice to the jury, the judge merely went on to clarify that an act may be official even if it is not part of a responsibility explicitly assigned by law but instead clearly established as part of an official’s position by settled practice.
Second, the government says, the term “settled practice” is everyday speech, and an official could therefore easily understand what actions could be “clearly established.” Indeed, the term appears in many U.S. Supreme Court decisions.
Third, the government argues, Jefferson himself is in no position to challenge the clarity of the “settled practice” instruction because Jefferson himself clearly knew that he was illegally performing official acts in exchange for bribes. In other words, even if the term “settled practice” creates vague borders, Jefferson’s actions were nowhere near those borders.
For example, the government says, Jefferson issued a Congressional inquiry to the Army for the benefit of a company that was bribing him; promoted the company’s product to a committee chairman, who wrote on Congressional letterhead endorsing the product; and led an official delegation to Nigeria, where he lobbied officials for the benefit of the company.
These acts, the government says, are all indisputably official acts. For the travel to Nigeria, the government notes, Jefferson filed forms with the House certifying that his travel was in connection with his official duties. In sum, the government says, Jefferson “consistently deployed all the trappings of his Congressional office,” including access to staff members, embassy limos and House stationery, to ensure that the constituents who bribed him received the influence they were purchasing.
So, what to make of this? Jefferson’s appeal is now in the hands of the Fourth Circuit Court of Appeals, which heard oral arguments in December. Unfortunately for Jefferson, even if the Fourth Circuit were to find compelling Jefferson’s argument about the vagueness of “settled practice,” this would not necessarily make Jefferson a free man or even get him a new trial. Jefferson was convicted on 11 counts, each with slightly different factual or legal bases. If the court upholds convictions on just one of the counts, Jefferson would remain imprisoned for many years. Only a home run — a complete reversal of all convictions — would set Jefferson free.
Nonetheless, you are right that the court’s decision could be significant to federal bribery law. Political law attorneys will certainly be watching closely. And perhaps some public officials will be, too.
C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.
Terri Henderson, 6, center, whose mother is El Salvador, attends a rally with members of Congress at Union Station's Columbus Circle to announce the Restore Opportunity, Strengthen, and Improve the Economy (ROSIE) Act on July 29, 2014. The legislation provides incentives for government contractors to pay a living wage and other benefits that would help low-income workers.