The Supreme Court on Wednesday appeared ready to side with former Virginia Gov. Bob McDonnell in a case that could shape how members of Congress and other elected officials do their jobs without running afoul of corruption laws.
A majority of the justices expressed concern at oral arguments over McDonnell’s conviction, particularly that the federal bribery and honest services fraud laws could be unconstitutionally vague. The laws make it a felony to agree to take “official action” in exchange for money, campaign contributions or anything of value.
Chief Justice John G. Roberts Jr., along with Justices Anthony M. Kennedy and Stephen G. Breyer, searched repeatedly during the arguments for a way to define — or even describe — exactly which actions the law forbids.
The justices asked how to draw a line between a felony act of attempting to influence a government action and providing service for or advocating on behalf of constituents, such as writing a letter to a housing department to look at a particular case.
Breyer was the most vocal about his concerns, pointing out how a criminal law was a weapon to cure corruption when the law’s definition might leave political figures unsure about what they were allowed to do.
As Deputy Solicitor General Michael R. Dreeben defended the corruption laws, Breyer said the government’s position “puts at risk behavior that is common,” such as when an elected official accepts a lunch or a ticket to a baseball game.
“Now, suddenly, to give that kind of power to a criminal prosecutor, who is virtually uncontrollable, is dangerous in the separation of powers sense,” Breyer said.
Prosecutors said that in 2011 and 2012, McDonnell and his wife, Maureen, solicited and secretly accepted more than $175,000 in money and luxury goods from Virginia businessman Jonnie Williams, who also donated to the governor’s campaign. The Justice Department contended that in exchange, McDonnell agreed to have his office help Williams seek favorable actions from state government.
McDonnell, once a rising star in Republican circles and a potential vice presidential pick, was convicted in 2014 on 11 counts and sentenced in 2015 to two years in prison.
Williams wanted researchers at Virginia’s state medical schools to perform extensive scientific testing on a dietary supplement called Anatabloc developed by his company, Star Scientific. McDonnell raised Anatabloc in a meeting with state officials, set up a meeting for Williams with another Virginia official, and held a lunch at the governor’s mansion that focused on Anatabloc, the Justice Department states.
The Justice Department says that McDonnell, who was in debt, agreed to use the power of his office to help Williams’ company in exchange for the gifts, including $20,000 for a shopping spree on New York’s Fifth Avenue, more than $5,000 for a monogrammed Rolex and the use of a convertible Ferrari.
McDonnell’s lawyers say his “supposedly ‘official acts’” in the indictment were limited to routine political activities of arranging meetings, asking questions and attending events.
The oral arguments explored hypothetical situations. At one point, Kennedy questioned whether a janitor who gets a bottle of beer to clean a particular classroom first would be committing a felony. Roberts asked if a governor with an agenda for bringing jobs to a state would be committing a felony if he accepted an invitation to go trout fishing from a businessman who wanted tax credits to locate a new plant there.
Kennedy took exception when Dreeben told the justices that one of the limits to prosecutions of public officials was the difficulty of proving bribery to a jury.
“But this doesn’t answer Justice Breyer’s basic question and ours,” Kennedy said. “You’re going to tell the senators, the officials with the lunches, that, ‘Don’t worry, the jury has to be convinced beyond a reasonable doubt, and that’s tough.’”
Breyer voiced concern that a jury would be working out what a senator had in mind when he wrote a letter to the Justice Department about looking into an antitrust situation.
“I say that is a recipe for giving the Department of Justice and the prosecutors enormous power over elected officials who are not necessarily behaving honestly,” Breyer said.
Dreeben pushed back, saying that the way McDonnell’s attorneys want the law to read would be “a recipe for corruption” because it would mean government officials would not be committing bribery if they take money for arranging meetings and other access that the general public doesn’t have.
Roberts brought up what he called “an extraordinary document” in the case, an amicus brief from former White House counsels to Presidents Barack Obama, George W. Bush, Bill Clinton, George H.W. Bush and Ronald Reagan.
“And they say, quoting their brief, that ‘if this decision is upheld, it will cripple the ability of elected officials to fulfill their role in our representative democracy,’” Roberts said. “Now, I think it’s extraordinary that those people agree on anything. But to agree on something as sensitive as this and to be willing to put their names on something that says this cannot be prosecuted conduct, I think is extraordinary.”
McDonnell attended the arguments, sitting in the second row of the public section along with his wife and one of their daughters. The Supreme Court in August said McDonnell could stay out of prison while the justices considered his appeal.