ANALYSIS OF McDONNELL v. US
[Posted June 27, 2016] My long-time readers know that I generally leave coverage of SCOTUS to others – I particularly commend SCOTUSblog to you – but I addressed last year the major-news case of McDonnell v. United States, involving the bribery conviction of Virginia’s 71st Governor. Today the justices reverse the Fourth Circuit, which had affirmed the convictions. It’s only fair for me to round out the coverage with a few notes from today’s ruling. This will not be a comprehensive analysis of the case; you’ll be able to get that in several other locations. I just want to highlight a few issues.
First, today’s ruling is unanimous. The Chief Justice pens a 28-page opinion that rejects an expansive view of what will constitute official acts under the Hobbs Act and honest-services statutes. The primary reason for the reversal is the Court’s agreement with the defense – and several high-profile amici – that criminalizing conduct in the way the government urged would make it virtually impossible for elected officials to interact with their constituents.
Here’s one key passage on this point:
But conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time.
The italics in that sentence are mine. These words are technically hyperbole, but clearly the justices view this as ordinary activities, not something that should be criminalized.
Second, the Court effectively adopts the “thumb on the scale” approach urged by the defense in this appeal. That is, arranging a meeting with an appropriate government official isn’t an official act, unless the actor leans on the second official to make something come out a particular way. (The court adds that advising the second official can also support criminal culpability, so this isn’t a blanket pass for anything short of arm-twisting.)
Third, the reversal is not, as the Governor had sought, a complete victory. The Court remands the case to the Fourth Circuit to decide whether to remand for a new trial. The justices today focus on what the correct jury instruction should be to define official act, and then direct the Fourth to consider, in the first instance, whether the evidence here could have supported a conviction under the correct instruction. If so, then the case goes back to the district court; if not, it’s a final dismissal.
The Governor had asked the justices to find the statutes unconstitutionally vague, but they decline that invitation, finding that their newly announced explanation will satisfy due process.
Finally, the justices clearly are not happy with the package they’ve received. Their distaste for the facts comes though loud and clear in a couple of instances. I sense that they reverse primarily because of the logical extension of the Fourth’s holding, not because of a sense that the Governor deserved no blame.
Even so, the Governor is back in the game, so he’s had a good day. If the Fourth gives him a favorable ruling, then his long nightmare (and probably his wife’s, too) will be at an end. Failing that, he might be in for a terrible ordeal – a retrial, if the US Attorney is so advised.