In May, we posted a piece about the U.S. Supreme Court being poised to redefine “political corruption” in the case of former Virginia Gov. Robert F. McDonnell who was convicted in September 2014 on federal corruption charges. The government charged, and the jury believed, that McDonnell performed five “official acts” that benefitted a political supporter in exchange for loans and personal gifts.


As we pointed out in that post, McDonnell’s attorneys saw the facts of the case through a different, broader lens. They informed the Supreme Court that the former governor’s “official acts” were “limited to the most routine political activities: arranging meetings, asking questions, and attending events.


Officials Acts Must Involve Formal Exercise of Government Power


There is no dispute that Governor McDonnell never exercised any governmental power on behalf of his benefactor, promised to do so, or pressured others to. As the only staffer who met with the alleged bribe-payor during the supposed conspiracy testified: The Governor never ‘interfere[d]’ with her office’s ‘decision-making process.’


To overcome this failure of proof, the Government persuaded the lower courts to disregard every relevant constitutional principle and stretch the corruption laws beyond recognition. Despite bribery’s age-old confinement to the abuse of actual sovereign-power, the lower courts held that asking about a policy, arranging a meeting to discuss a policy, or appearing at an event where a policy is mentioned are ‘official’ acts ‘on’ that policy because such acts could, hypothetically, ‘have the purpose or effect of exerting some influence.”


Prosecutors Stretched Definition of Official Acts


The issue before the high court was thus a fairly simple one as McDonnell’s attorneys framed it: if the governor’s conviction was allowed to stand, the Government would have the power to criminalize virtually every routine exchange between an elected official and a constituent under a bribery conspiracy theory.


Setting up a Meeting, Hosting an Event, or Calling Another Politician Not Official Act


In an 8-0 opinion issued on June 27, 2016, the Court vacated McDonnell’s conviction and issued a ruling that indeed gives a legal blessing to political actions in exchange for benefits that, historically, were considered corrupt. Writing for Scotusblog, Fred Werthheimer described the essence of the court’s opinion this way:


“ … Citizen X meets with her representative to ask for help in setting up a meeting with a government agency. The representative says I’m happy to set up the meeting if you give me a check for $15,000. No check, no meeting.”


Put another way, routine government business has been put up for sale – something like a yard sale.


Behavior of Governor and Wife “Tawdry,” Not Bribery


Writing for the majority, Chief Justice John Roberts referred to the behavior of both McDonnell and his wife, both of whom opened the Virginia State House much like a Rooms to Go Independence Day sale, as “tawdry,” adding: “There is no doubt that this case is distasteful; it may be worse than that.”


But as Lyle Denniston, writing for Scotusblog, put it:


“However, the Chief Justice, reciting some of the more vivid items of inducements for the governor or his wife from a favor-seeking Virginia businessman, said the case was not about ‘tawdry tales of Ferraris, Rolexes, and ball gowns.’ Rather, he wrote, the Court’s concern is ‘with the broader legal implications of the government’s boundless interpretation of the federal bribery statute.”


And it is that last line which gets us on board with the Chief Justice. We don’t like the possible real time fallout of the decision; namely, that corrupt politicians will see it as a license to sell their services to the highest bidder in a flea market kind of environment. Congress, we suspect, has already become a flea market for the rich and powerful – and the Court’s opinion in the McDonnell case may very well have them dancing in the ball rooms passing out Rolexes.


Prosecutors Overreached


But worse than this celebratory prospect is precisely what the Chief Justice summed as “the government’s boundless interpretation of the federal bribery statute.” In essence, we believe government overreach is more damaging to our system of government than is a license for political corruption.


The U.S. Justice Department should not have the final say in how federal laws enacted by Congress are interpreted and applied. That constitutional responsibility rest with the courts—not assistant U.S. attorneys.


There are scores of other federal laws the government can use to combat and prosecute acts of political corruption.


Decision Restricts Kind of Acts that Are “Official”


As a matter of fact, the Supreme Court refused to strike down, as the corrupt ex-governor sought, the basic bribery and extortion laws under which he was convicted (the federal bribery statute, Hobbs Act, and honest-services fraud statute found in 18 U.S.C. §§§ 201, 1951, 1346—all of which make it a felony for an elected official to agree to take “official action” in exchange for money, campaign contributions, or any other thing of value”); but rather simply, although quite sharply, restricted the kind of “official act” the government can treat as “corrupt.”


Will the Court’s decision make it harder for the Justice Department to combat official misconduct?


Yes, it will.


But government prosecutors brought us to the legal cross-roads with their ever increasing tendency to overreach by trying to criminalize ordinary actions by government officials and everyday citizens, especially in the health care industry. They have abused the prosecutorial process and the McDonnell decision is their just desserts.


It’s long overdue for government prosecutors to put on their “big boy” pants and be made to prove beyond a reasonable doubt criminal wrongdoing under the statutes enacted by Congress and interpreted by the courts. If they cannot fulfill these prosecutorial duties, there’s always a practice for them in real estate law or positions with lobbying groups where they can endorse the kind of behavior they once prosecuted as criminal.