Not that often do I find agreement with Washington Post columnist George Will but I do regarding the Supreme Court’s recent decision in McDonnell v. United States, The McDonnell Decision and the Corrupting Crusade Against “Corruption.”
The case and the column regard former Virginia Governor Robert McDonnell and his wife, Maureen, who accepted some $175,000 gifts and loans from a Johnnie Williams, a supporter and entrepreneur looking to promote a nutritional supplement derived from tobacco. The McDonnells' story is not graceful. Far more important, however, is the check the Supreme Court put on the Justice Department’s ability to define a crime as anything a prosecutor might imagine it to be.
Williams wanted Gov. McDonnell’s help in improving the market position of his company’s nutritional supplement. Williams had at least two ideas about how this might be achieved: (1) getting Virginia’s public universities to perform research studies regarding the supplement, which presumably would laud its benefits; and, (2) getting the supplement covered by Virginia’s health plan for state employees.
Gov. McDonnell did provide introductions and contacts for Williams with the decision-makers in Virginia that would be in a position to cause to get done these things. The Governor did this, as Chief Justice Roberts’ opinion described, by “setting up a meeting, calling another public official, or hosting an event.” The question whether any of these actions constituted an “official act.”
The Court ruled unanimously that “setting up a meeting, calling another public official or hosting an event” standing alone is not an “official act” and vacated Gov. McDonnell’s convictions. There was no proof that McDonnell exerted any pressure or influence on Williams’ behalf; likewise, there was no evidence that he promised Williams to do so. So the prosecution amounted to little more than wild overreach by the government as the Chief Justice described:
In the Government’s view, nearly anything a public official accepts -- from a campaign contribution to lunch -- counts as a quid; and nearly anything a public official does -- from arranging a meeting to inviting a guest to an event -- counts as a quo.
But conscientious public officials arrange meetings from constituents, contact other officials on their behalf, and include them in events all the time. The basis compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns -- whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.
But the Court took pause to take a justifiable swipe at the McDonnells, who, at minimum, were not reluctant to exploit the Governor’s office to ease personal financial shortfalls:
There is no doubt that this case is distasteful; it may be worse than that. But our concerns is not with tawdry tales of Ferraris, Rolexes, and ball gowns.
The McDonnell prosecution is an example of the criminalization of politics that I warned against in a 2013 essay published in the Lexington Herald-Leader: In Farmer Case, We Could Push Law So Far as to Criminalize Politics.
Good discussions of the case come at Scott Greenfield’s Simple Justice, Dinner with Bob McDonnell and by Josh Kendrick at Fault Lines, Governor McDonnell & the Ferrari: It’s Just Politics.
For further and deeper background reading: Plunkitt of Tammany Hall.