Supreme Court Narrowly Defines “Official Act” in McDonnell Case
This morning, the United States Supreme Court issued its opinion in McDonnell v. United States, rejecting the Government’s broad interpretation of an “official act” under federal bribery law. The Court held that without more, setting up meetings, talking to other officials, and organizing events are not “official acts” as defined by statute. In an opinion authored by Chief Justice John Roberts, the Court unanimously agreed to narrowly interpret the term “official act,” citing constitutional, due process, and federalism concerns with the Government’s broad interpretation.
Former Virginia Governor Robert McDonnell and his wife Maureen were convicted on bribery charges in 2014. McDonnell was indicted earlier that year for accepting over $175,000 in gifts and loans from Virginia businessman Jonnie Williams, in exchange for performing certain “official acts.” McDonnell was charged and convicted on counts of honest services fraud and Hobbs Act extortion. During his jury trial, McDonnell requested an alternate jury instruction to define “official act” – an element of bribery that the Government was required to prove for a conviction. The District Court denied the instruction. Following his conviction, McDonnell filed motions to vacate the conviction and for acquittal, which the District Court denied. McDonnell appealed to the Fourth Circuit, which upheld the lower court’s decision.
In vacating the Fourth Circuit’s decision, the Supreme Court held that (1) to constitute an official act, a question or matter must involve a formal exercise of governmental power and must be something specific and focused that is pending or may by law be brought before a public official; (2) a typical meeting, call or event is not a question or matter; and (3) without something more, setting up meetings, hosting events, and calling upon other officials are not decisions or actions on questions or matters.
The Government argued for a broad interpretation of “official acts” under 18 U.S.C. § 201, which prohibits public officials from receiving or agreeing to receive anything of value in exchange for taking official action. Under the Government’s interpretation, “official act” would include nearly any activity by a public official. McDonnell argued that the “official act” should be limited to “those acts that ‘direct a particular resolution of a specific governmental decision’ or that pressure another official to do so.” The Court agreed that the statute required a narrower interpretation of “official act” as adopting the Government’s interpretation would open the door to “overzealous prosecution.” In a continuation of the precedent articulated in Skilling v. United States, the Court passed on an opportunity to invalidate the federal bribery statutes, opting instead to construe rather than condemn Congress’s legislative efforts.
That the McDonnell opinion was unanimous demonstrates the Court’s steadfastness in resisting the criminalization of ordinary politics - as distasteful and unseemly as that can often be. The Court understands that politics and politicians necessarily have associations with money, influence, and human relationships but also that the public often views those associations as inherently corrupt. However, politics and government could not function if government officials feared that any interaction with a constituent or donor could, in the eyes of a zealous prosecutor or cynical juror, merit a humiliating (and potentially politically motivated) investigation, or even imprisonment.
As it has attempted less successfully with the confluence of money and politics in the campaign finance context, the Court in McDonnell tried to clearly define what constitutes an official act - so that politicians can objectively understand the difference between special attention given to a donor or constituent and conduct that crosses the line into criminal behavior. The Court recognized that conscientious public officials arrange meetings for constituents, contact other officials, and include them in events all the time. In McDonnell, the Court struck a balance between fighting government corruption on the one hand and on the other hand respecting liberties such as the right to petition government for redress of grievances and the right to associate with others to speak on the salient issues (and candidates) of the day. That it did so unanimously, on a case involving conduct that was “distasteful” and “tawdry,” underscores the Court’s resolve that politics remain in the arena of persuasion, rather than litigation.