the justices’ respective backgrounds shaped
their viewpoints on this far-reaching issue.
The article will further analyze McDonnell
v. United States’ relevance to California’s
anti-corruption statutes.
Finally, the court’s reasoning will be applied not to the lavish extravagances of a
powerful governor, but instead to the statutory obligations and the workaday functions
of California school board trustees. In so
doing, we will seek to determine what official acts actually are, and what is necessary
to ensure pay-to-play politics does not pollute public school districts.
Access or excess?
As Justice Roberts acknowledged, McDonnell’s activities were “dishonest” and
“distasteful.” The governor and his wife,
Maureen, became involved with businessman Jonnie Williams, who testified that he
provided the McDonnell family with approximately $177,000 in “gifts,” including
the use of vacation properties and a $50,000
loan to obtain the governor’s “help” to gain
state-sponsored scientific studies to classify
his tobacco-based dietary supplement as a
pharmaceutical. The governor admitted that
he requested the $50,000 loan and accepted
gifts from Williams. That is the “quid.”
In return, McDonnell provided five separate services. First, he asked his secretary
of health to meet with Williams regarding
clinical trials at Virginia universities. Second, Maureen McDonnell arranged a lunch
with her husband at which Williams distributed grants to university doctors.
Third, after becoming aware that university doctors were nonresponsive to Williams, Gov. McDonnell sent an email to
his counsel requesting a meeting to discuss
university research studies. Fourth, the
governor invited Williams to a “health care
leaders” reception at his residence. And fifth,
at a Virginia employee health plan meeting,
McDonnell publicly commented that the
supplement was working well for him and
that it “would be good for state employees.”
Again, the governor admitted performing
those services for Williams, but explained he
had done similar things for others “literally
thousands of times.” That was the “quo.”
McDonnell was prosecuted under the
A bounded definition of ‘official act’ can still allow room for
prosecuting corruption, while at the same time some dishonest
behavior may not be prosecuted.
federal Hobbs Act, which makes it a crime
for “a public official… directly or indirectly,
to demand, seek, receive, accept or agree to
receive or accept anything of value” in return
for being “influenced in the performance of
any official act.”
An official act is defined as, “any decision
or action on any question, matter, cause, suit,
proceeding or controversy… which may be
brought before any public official, in such official’s official capacity, or in such official’s
place of trust or profit.” Thus, prosecutors
needed to prove that a public official performed an official act in exchange for loans
or gifts.
At the trial, the district court instructed
jurors that to convict McDonnell, they must
find that he agreed “to accept a thing of value
in exchange for official action.” The governor
requested, and did not receive, an instruction that an official act must try to or “in fact
influence a specific official decision that the
government actually makes.”
McDonnell’s defense was that promoting
Williams’ business did not involve the exercise of actual sovereign power, so it was not
an official act. The jury convicted McDonnell on 11 counts of bribery.
Supreme Court reasoning
The primary issue before the Supreme
Court was whether arranging meetings,
contacting public officials, hosting an event
or publicly promoting a product were official
acts. As usual, Justice Roberts displayed his
preternatural brilliance at deconstructing
statutes.
Roberts reasoned that since the Hobbs
Act refers to a “question, matter, cause, suit,
proceeding or controversy…,” those words
connote a formal exercise of governmental
power, such as a lawsuit, hearing or administrative determination. Employing like reasoning, he reasoned requiring questions to
be “pending” or “may be brought” before any
public official means a thing that can be put
on an agenda, tracked for progress, and then
checked off as complete.
Roberts’ narrow interpretation was broadened by previous Supreme Court decisions.
United States v. Birdsall, 233 U.S. 223, 234
(1914), found that a public official may act by
using his or her position to exert pressure on
another official to perform an official act. An
official can also act by using their position to
provide advice to another official, knowing
or intending that such advice will form the
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