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Judging a Bribe Is Hard If It's Unsuccessful

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Who put the quid in the quid pro quo? Was it the same person who put the ram in the rama lama ding dong? The U.S. Supreme Court said Friday that it would consider a version of this eternal question in the appeal of Bob McDonnell, the convicted former governor of Virginia.

To be specific, the court will decide whether the federal crime of bribing an official requires that the official actually do something specific in return for the bribe, or whether it’s enough for the official to do his usual job while generally hoping to influence policy in favor of the person who gave the bribe. The issue has major significance for all public officials -- and for the private actors who hope to influence them, whether legally or illegally.

The basic facts of McDonnell’s case: Jonnie Williams Sr., the chief executive of Star Scientific, a dietary supplement company, hoped to get public universities in Virginia to test a tobacco-based anti-inflammatory product called Anatabloc. Granted immunity by the court, Williams testified that, in pursuit of that goal, he gave McDonnell and his wife, Maureen, more than $175,000 worth of gifts, including a Rolex watch.

The catch -- and the fact that makes the case of broader legal significance -- is that the universities never did test Anatabloc. Nor did the prosecution prove that McDonnell took specific official actions that would have directed state authorities to give Williams what he was seeking.

The relevant law, known as the Hobbs Act, has been interpreted by the Supreme Court to require the prosecution to prove only “that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” The federal trial court accordingly charged the jury in McDonnell’s case that to convict, it must find that McDonnell took the gifts “knowing that the thing of value was given in return for official action.”

That leaves the all-important question of what counts as an official action. The lower court said that could include anything that was part of the normal and customary practices of the governor, including public statements. It said the governor didn’t have to have final say or authority over the result sought by the bribe payer. It further ruled that “official action can include actions taken in furtherance of longer-term goals.”

The result of this broad definition of official action, according to McDonnell’s attorneys, is that almost anything positive that the governor may have said about Williams, his company or its product, would’ve counted as sufficient to convict him on the quid pro quo theory.

The U.S. Court of Appeals for the 4th Circuit upheld the conviction. It ruled that it was enough for McDonnell to act in the normal and customary manner of the governor’s job while seeking to influence policy in a general way in favor of Williams. It said that “the term ‘official act’ covers only ‘decision[s] or action[s] on any question, … which may by law be brought before any public official.’” And it said that “that an ‘official act’ may pertain to matters outside of the bribe recipient’s control.”

The Supreme Court took the case to decide two questions. The first is whether this broad interpretation of the Hobbs Act went too far, beyond “exercising actual governmental power.” The second question is whether it would be constitutional for Congress to criminalize the act of accepting a gift and then attempting to exercise influence outside the scope of the government employee’s authority.

The second question seems easy to me: Why shouldn’t Congress be able to make sure that government employees are purer than Caesar’s wife? The appearance of public corruption certainly influences interstate commerce, shaping business decisions of all kinds. In public, officials should have no independent free-speech rights in the exercise of their jobs that would extend to pumping someone’s products.

The first question is much harder. Can there really be a quid pro quo if the government employee not only doesn’t deliver results, but also never took steps within his official duties that would’ve brought about such results?

McDonnell set up meetings for Williams’s company with his subordinates. But did that go beyond the general sort of favor that government actors do for private donors and corporations all the time, without being criminally charged?

The question is especially important because, in the U.S., campaign donations by private actors and corporations are often made precisely to ensure future goodwill of this sort. When you donate to a politician, you don’t expect a literal quid pro quo. But you do think that your calls will be returned and that useful meetings will be arranged on your behalf.

McDonnell’s case looks especially bad because the gifts were made directly to him and his wife, not via a campaign. But the issue is fundamentally similar. Elected officials need campaign donations a lot more than they need Swiss watches, and the amounts of the former dwarf the value of the latter.

The former governor isn’t a very sympathetic petitioner. That the court took his case, however, suggests that at least four judges understand how high the stakes of his conviction really are. If it’s upheld, all elected officials will have to be much more careful about how they operate with friends and donors. That might be very good thing -- but it would mean a major change from business as usual. A conservative Supreme Court that has expanded the role of money in politics may not want to see that change occur.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net