Former Virginia governor Robert McDonnell and the former First Lady of Virginia, Maureen McDonnell have now been indicted for accepting gifts from a “friend” and the friends company. These “gifts include business loans, shopping trips, partial payment for a daughter’s wedding reception in return for….? We don’t know in return for what! It is not clear although it appears to be in return for a gubernatorial blessing and promotion of the friend and contributor’s product (vitamin supplements) and perhaps increased access to certain government officials. Neither the indictment nor any other source has yet attempted to allege any specific “quid pro quo” in the traditional form of a government contract, appointment to a Board, Commission, other office, or any other tangible reward for this personal and political generosity.
The backdrop for this and the drama associated with it is the multiple investigations of the troubles and travails of Governor Chris Christie of New Jersey. Governor Christie’s now former Deputy Chief of Staff as well as his former close friend and political advisor among others including officials at the New York-New Jersey Port Authority now banished, have been fired from their positions and relieved of their responsibilities. In the case of the Deputy Chief of Staff, she appears to have initiated a 4 Day traffic jam on the George Washington Bridge to punish a Mayor for not endorsing the Governor’s reelection campaign. The Governors friend and advisor is no longer advising Governor Chris Christie officially or unofficially as a result of joking about it despite its victims including an individual who died because the emergency healthcare he needed couldn’t be reached in time as a result of the delay as well as school children being delayed and people not being able to get to work on time.
The multiple state and federal investigations of this event in New Jersey are now expanding exponentially to include allegations that officials including New Jersey’s Lieutenant Governor threatened to withhold federal funds sent to New Jersey for relief of Hurricane Sandy related damages if the Jersey City Mayor and other Mayors did not agree to support a development project favored by Governor Christie. Governor Christie has denied knowledge of any of this. His Lieutenant Governor has branded the allegations as “illogical” and therefore “inconceivable.”
“Illogical”- not really! Inconceivable- hardly. In fact most people believe that as columnist George F. Will has pointed out, “Politics in a democracy is transactional.” The real issue is which transactions should be prohibited and which should be permitted.
As George Will points out and is well known, honest and decent candidates routinely solicit the support of interest groups, corporations and wealthy individuals and such entities regularly solicit the solicitousness of candidates. It is therefore not uncommon for wealthy individuals to support candidates lavishly for elective offices at every level of government with the expectation of receiving in return, jobs, ambassadorships, appointments to Boards and Commissions and/or with the hope that the candidate, if elected, will show gratitude for their generosity in the form of implementing policies desired by their financial benefactors.
Is this “quid pro quo- corruption”? Until this question is answered directly by the U.S. Supreme Court, honest Americans running for public office risk criminal prosecution because of the wide discretion prosecutors arguably possess to criminalize the financing of their campaigns and careers.
This is the concern if not the complaint in effect voiced by among others “Morning Joe” Scarborough in commenting on the McDonnell case. Conversely, in the absence of a bright line limiting prosecutor’s authority, convictions obtained by dedicated prosecutors trying to root out and punish corruption by aggressively holding corrupt candidates and their contributors accountable are seriously at risk. This is because it is well settled constitutional law that fundamental due process is denied when the law does not give proper notice of what kind of behavior is proscribed criminally. It is this notice requirement that circumscribes prosecutorial discretion in corruption cases. This was the reason that the convictions of several high profile elected officials and corporate officers for “depriving citizens of home services” were overturned on appeal by several federal circuit courts of appeals.
The federal circuit courts however differ on what evidence is required to establish bribery involving political and personal contributions. One circuit court has held that to establish mens rea (criminal intent) necessary for a conviction “an explicit promise” is required to be proven. The Oxford English Dictionary defines “explicit” as “stated clearly and in detail, leaving no room for confusion or doubt.”
Another circuit court, however, has held that “explicit” does not mean an “express” or an actually and clearly stated promise that a particular official action will be controlled by a contribution. This far less rigorous standard holds that “explicit quid pro quo” can mean only a “state of mind inferred from perhaps suspicious circumstances.” This opens the breadth of prosecutorial discretion dangerously beyond the other standard. More importantly it would in the opinion of this writer tempt zealous prosecutors and perhaps ultimately judges and juries to ascribe unspoken but criminal mental states to elected officials who are already held in low esteem generally
For example as one commentator asked with reference to the McDonnell case—Is showing up at a reception for the launch of a product by itself a quid pro quo? If so, is President Obama going to a Democratic Party Fundraiser hosted by Dreamworks and its owner in Hollywood and saying nice things about Dreamworks Company prohibited? As another example — Is the very common practice of governors in states with strong gubernatorial offices including Maryland to not provide funds in a supplemental budget for a project favored by a legislator if he or she doesn’t support an unrelated bill or project favored by the Governor a criminal violation?
The effect of this blurry line has a long and colorful history in Maryland which can reference the convictions of two governors, several County Executives as well as State and Federal legislators including most recently an incumbent State Senator whose articulated defense to corruption charges was that he was not clever or sophisticated enough to comprehend where the line, blurry as it is, was between quid pro quo and helping his employer and constituent. A jury of honest citizens sympathized and acquitted the Senator.
There is not at the present time a long term or even a temporary solution to the increased visibility of corruption in our system. The problem in a nutshell, as columnist George F. Will pointed out not too long ago, is that “the line is blurry between the exercise of constitutional rights and the commission of a crime.” That line needs to be straightened and brightened. It needs to be straightened with a vision of what the U.S. Supreme Court recognized in the Caperton v. Massey Coal case but then afterward ignored in the Citizens United case- “whether after a realistic appraisal of psychological tendencies and human weakness” there is such a “risk of actual bias of prejudgment by the official” as a result of campaign contributions and other personal and financial relationships and arrangements that the practice must be forbidden if the guarantee of due process is to be adequately implemented. “