by Barry Goldman
Robert McDonnell was the Governor of Virginia in 2014 when the federal government indicted him and his wife on bribery charges. A Virginia businessman named Jonnie Williams provided the McDonnells with over $175,000 in “loans, gifts and other benefits.” In exchange, the Governor “arranged meetings, hosted events, and contacted other government officials” in an effort to advance the fortunes of Anatabloc, a nutritional supplement manufactured by Williams’ company.
Mr. and Mrs. McDonnell were convicted and sentenced to prison terms of two years and one year respectively. McDonnell appealed, and the Court of Appeals affirmed. He petitioned the Supreme Court, they granted certiorari, and we have the case of United States v. McDonnell.
I don’t want to be accused of spinning the facts here, so I’ll take my language directly from the Court’s decision. Here are two examples of the conduct at issue:
Governor McDonnell’s wife, Maureen McDonnell, offered to seat Williams next to the Governor at a political rally. Shortly before the event, Williams took Mrs. McDonnell on a shopping trip and bought her $20,000 worth of designer clothing. The McDonnells later had Williams over for dinner at the Governor’s Mansion, where they discussed research studies on Anatabloc.
At a subsequent meeting at the Governor’s Mansion, Mrs. McDonnell admired Williams’s Rolex and mentioned that she wanted to get one for Governor McDonnell. Williams asked if Mrs. McDonnell wanted him to purchase a Rolex for the Governor, and Mrs. McDonnell responded, “Yes, that would be nice.” Williams did so, and Mrs. McDonnell later gave the Rolex to Governor McDonnell as a Christmas present.
There is no dispute that McDonnell “arranged meetings, hosted events, and contacted other government officials” on behalf of Williams and Anatabloc. The question the court addressed was whether those were “official acts.” Here is more from the Court’s opinion:
[T]he federal bribery statute… makes it a crime for “a public official or person selected to be a public official, directly or indirectly, corruptly” 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 at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”
So let’s review. Williams wants to see universities in Virginia conduct trials of Anatabloc so he can get FDA approval to market it as a drug. He takes the Governor’s wife out and buys her $20,000 worth of clothes and a Rolex. The Governor invites him to the Mansion and also invites top health officials from his administration and executives from Virginia universities involved in drug research. What do you think is happening?
Exactly. Textbook public corruption is happening. And that’s what the District Court and the Court of Appeals thought too. But the Supreme Court found otherwise. According to the court, arranging meetings, hosting events, and contacting other government officials is just what public officials do. Without more, the court said, those are not “official acts.”
The decision contains a lot of what purports to be textual analysis and there is the invocation of the Latin maxim noscitor a sociius to establish that introducing people at a dinner at the Governor’s Mansion is not “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending” because, um, reasons. Then there is this:
[C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic 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.
Oh please.
Anyway, McDonnell’s conviction was reversed and we were left with a dramatically narrowed definition of “official act.” (At least until Trump v. United States where the court needed a very broad definition of official acts so it could find Trump immune from prosecution for the crimes he committed in office. But that’s a different essay.)
That was a few years ago. This year we got Snyder v. United States. James Snyder was the mayor of Portage, Indiana. He “steered” a contract for over $1 million to a local truck dealership who subsequently wrote him a check for $13,000. A jury convicted Snyder of bribery, and once again the case made its way to the Supreme Court.
The law in question (Section 666 of Title 18) makes it a crime to:
“corruptly” solicit, accept or agree to accept “anything of value from any person intending to be influenced or rewarded” for an official act.
The Court did more of its highly sophisticated textual analysis and discovered that the conduct prohibited by the statute included only bribes, not gratuities. Bribes, you see, are paid to a corrupt public official before he performs the desired official act. Gratuities are paid afterward. You might think the language in the statute that says it’s unlawful if the public official was “intending to be influenced or rewarded” meant it covered both, but you would be wrong. “Rewarded” does not mean rewarded. It’s complicated.
But the policy reasons for this finding are not complicated. I am not making this up. Here is language from the decision:
[I]s a $100 Dunkin’ Donuts gift card for a trash collector wrongful? What about a $200 Nike gift card for a county commissioner who voted to fund new school athletic facilities? Could students take their college professor out to Chipotle for an end-of-term celebration? And if so, would it somehow become criminal to take the professor for a steak dinner? Or treat her to a Hoosiers game?
[U]nder the Government’s approach, families, students, constituents, and other members of the public would be forced to guess whether they could even offer (much less actually give) thank you gift cards, steak dinners, or Fever tickets to their garbage collectors, professors, or school board members, for example.
This is complete horseshit, of course. But there it is. The court ruled 6 to 3 along the predictable lines that Section 666 does not prohibit gratuities. The question is why. Why is the court systematically dismantling the law of public corruption?
The obvious answer is that the members of the court benefit from public corruption. Justice Thomas, for example, appears to be a world-class schnorrer. And the Federalist Society that gave us the current court majority also gave us Citizens United and the idea that corporations are people and money is speech. What used to be considered egregious corruption is now the ordinary course of business.
But there is also another answer. I’m thinking here of Daniel Patrick Moynihan’s famous essay Defining Deviancy Down. In it, Moynihan cited Emile Durkheim for the idea that, “the number of deviant offenders a community can afford to recognize is likely to remain stable over time.” He proffered the thesis that:
[O]ver the past generation… the amount of deviant behavior in American society has increased beyond the levels the community can “afford to recognize” and that, accordingly, we have been redefining deviancy so as to exempt much conduct previously stigmatized, and also quietly raising the “normal” level in categories where behavior is now abnormal by any earlier standard.
If this idea is correct, society seeks a state of equilibrium with regard to what is considered normal, what is considered deviant, what is criminal and what is tolerable. If public corruption is de-stigmatized, it creates room in the system to criminalize something else, say, abortion or homelessness.
I don’t know if this is happening because of Moynihan’s principle. I note only that it is happening. So, what comes next ? After public corruption has been thoroughly normalized, where else might we expect to see similar reconfiguration?
The separation of church and state is a promising area. We have seen that the court is sympathetic to doctors who oppose reproductive healthcare on religious grounds, bakers and web designers who oppose same sex marriage, and coaches who like to lead prayers at public high school football games. If nothing is done about the direction of the court we are likely to see far more.
Then it is easy to imagine the court coming after free speech and free association where they conflict with the court’s policy preferences. The supermajority on the Supreme Court was engineered by the same radical conservative ecosystem that created Project 2025. Ideas that were “abnormal by any earlier standard” are now in play.