Recent U.S. Supreme Court decision could affect public corruption law
Targeting and prosecuting public corruption has been and always will be a high priority for prosecutors. Few things undermine respect for the government and elected officials more than actual or even perceived corruption.
Oklahoma is no stranger to public corruption cases. Most recently former state Senate leader Mike Morgan was sentenced to 18 months in federal prison for accepting bribes to influence legislation (and there are some who suspect that Morgan was not alone in this practice).
It is common in both politics and business to take advantage of personal relationships to open doors to opportunities not available to most of the public.
What conduct constitutes criminal corruption and what constitutes legitimate and legal (albeit distasteful) efforts to influence government officials? How do prosecutors reach the insidious type of influence peddling without over-criminalizing common and apparently legitimate efforts to influence the direction of that government? These questions were at the core of the recent Supreme Court decision in McDonnell v. United States.
McDonnell was the former governor of Virginia. Johnnie Williams owned a company that was developing a nutritional supplement and wanted Virginia’s public universities to pursue research studies to validate the supplement, so that Williams’ company could monetize it.
Over several years, Jonnie Williams paid McDonnell and his wife more than $175,000 in loans and other perks. In exchange for these payments, McDonnell set up meetings with public officials and hosted luncheons at the Governor’s Mansion designed to help Williams connect with the necessary people.
Based on what appeared to be a classic quid pro quo, a jury convicted McDonnell and his wife of public corruption based in part on a finding that McDonnell had committed an “official act” regarding a pending official matter. During the trial, prosecutors asked for and received jury instructions that broadly interpreted both of these requirements — creating the possibility that the jury had convicted McDonnell for simply setting up the meetings and for generally promoting Virginia business interests in the state — conduct the court concluded was not necessarily criminal.
The court remanded the case for possible retrial with proper jury instructions.
What can we learn from McDonnell and the future of public corruption prosecutions?
•Just because something is distasteful or repugnant does not necessarily mean it is illegal. Morality and the law do not always line up and while it outrages most citizens to see an elected official get $175,000 because of his official position, the fact of those payments does not necessarily meet all of the requirements for a criminal conviction. Seeking influence from public officials to further private interests is a common part of our political system. To warrant the ultimate sanctions — criminal punishment — the law must be clear and provide notice to avoid over-criminalization.
•McDonnell provides little concrete guidance as to where the line between legitimate and illegal conduct may lie. Williams was surely giving money to McDonnell expecting monetary benefits in return. With these facts, on remand a jury could find that McDonnell had agreed to do more than simply facilitate meetings and he could be convicted based on the same evidence presented at the first trial. McDonnell presented an opportunity for the Court to provide some bright line rules, but ultimately the opinion fails to provide any real guidance.
•As part of the case, friends and fellow public officials submitted briefs on McDonnell’s behalf urging that McDonnell had done nothing wrong and that personally benefiting from this type of conduct is a common practice in politics. The implications from this support are disconcerting. Is this really commonplace? Is it really acceptable for politicians to sell the influence of their office to business interests like Williams as long as they try to structure that sale to avoid the appearance of a traditional quid pro quo? In overturning his conviction, the McDonnell opinion at least gives the impression that these types of practices could fall outside of the current criminal prohibitions. Time will tell how this decision ultimately shapes the contours of public corruption prosecutions.