Elected officials likely to argue they have broader leeway in what’s permissible
By Eric Tucker
Associated Press
WASHINGTON (AP) — A Supreme Court opinion setting aside the bribery conviction of former Virginia Gov. Bob McDonnell will make it harder for Justice Department prosecutors to bring similar cases in the future and is welcome news to other elected officials investigated for or charged with corruption, legal experts say.
The court unanimously held Monday that the actions McDonnell took to benefit a businessman who gave him luxury gifts may have been distasteful but did not cross the line into illegal conduct.
The decision clarifying the boundaries between illegal conduct and what’s merely unseemly will almost certainly be used by other elected officials to argue that they have broader leeway in what’s permissible. And it means that prosecutors will have to think twice before charging elected officials simply for arranging access for a friendly benefactor.
“There is no question that this decision will result in a review of the theories that the Justice Department is using in open prosecutions as well as ongoing investigations,” said Jacob Frenkel, a white-collar defense lawyer in Washington and former prosecutor. He predicted that in ongoing prosecutions, defense lawyers will seek to get charges dismissed because of Monday’s decision.
At issue in the case is a federal bribery law that makes it illegal for a public official to agree to take “official action” in exchange for money, gifts and other things of value. The Justice Department has adopted an expansive view of what constitutes an official act, and in this case prosecutors accused McDonnell of hosting a governor’s-mansion event for businessman Jonnie Williams and of setting up a meeting for Williams with the state health secretary — all in exchange for than $165,000 in gifts and loans.
But the Supreme Court reined in what it called the government’s “boundless interpretation,” saying routine political courtesies such as hosting events for constituents or arranging meetings are explicitly not illegal.
“This decision just made prosecution of elected officials exponentially more difficult,” said Washington defense attorney Mark Schamel.
Each prosecution involves different facts and allegations, making it impossible to say how broad the impact will be. But the opinion had been eagerly anticipated by prosecutors, judges and defendants, and its potential ripple effects have already been acknowledged in courts.
Federal judges in New York last month told two legislative leaders convicted of corruption, Sheldon Silver and Dean Skelos, that they could wait until after the McDonnell case had been decided to report to prison.
Prosecutors there said they were reviewing the opinion but remained confident that their cases won’t be affected.
Among other defendants likely to seize on the opinion is Sen. Robert Menendez, D-N.J., who is awaiting trial on charges that he accepted bribes from a wealthy Florida eye doctor, Salomon Melgen, in exchange for legislative favors. A critical element of the indictment is a meeting between Menendez and Kathleen Sebelius, then the secretary of Health and Human Services, at which prosecutors say the senator advocated for Melgen’s interests.
The McDonnell opinion may bolster Menendez’s argument that the meeting was precisely the type of advocacy that the public expects of its leaders, and may help his assertion that as a legislator, he had no direct ability to influence an executive branch decision.
“The Supreme Court has again restricted the Justice Department from its ever-expansive theories of prosecuting public officials because it recognizes that we are in a system in which public officials take a lot of day-to-day actions on behalf of people, ideas and causes,” Abbe Lowell, a lawyer for Menendez, said.
The opinion may also factor into the appeal of former Rep. Chaka Fattah, D-Pa., who resigned from Congress last week after being convicted in a Philadelphia racketeering case that centered on his misuse of federal grants and nonprofit funds to repay an illegal $1 million campaign loan from his 2007 run for mayor. One of his attorneys said Monday that he would be “taking a close look” at the opinion.
Though the opinion may hamstring the Justice Department’s anti-corruption efforts, a narrower interpretation of official acts “leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court,” Chief Justice John Roberts wrote in the opinion.
One public official who uses his office to pressure another into taking an official act can still run afoul of the law, and setting up a meeting may not be “an innocent act” if intended to exert undue influence on a pending matter or question, the court said.
The Justice Department has not said whether it would seek to retry McDonnell.
Not everyone was convinced that the opinion will have a dramatic impact.
Barak Cohen, a former Justice Department public corruption prosecutor, said the court simply reaffirmed what it had been saying in recent years — that official acts must reflect a formal exercise of government power. The McDonnell prosecution was notably weak in that regard, he said, calling it “a real outlier.”
Regardless, he added, “The government’s going to be very careful about how it charges official acts in the future. I don’t think you’re going to see any super aggressive cases like this one for a while.”
