Good news! The Supreme Court of the United States has finally agreed to define the term “corruption.” That term has been used to label pejoratively what columnist GeorgeWill and others have correctly observed which is the undeniable fact that “politics in our representative democracy is transactional.” In granting former Virginia Governor Robert McDonnell’s Petition for a Writ of Certiorari in the case which resulted in his conviction in Federal Court, the highest Court in the land has, after inexplicably turning down several previous opportunities to do so, agreed to resolve the conflict between several Federal Circuit Courts of Appeals. The issue on which those Circuit Courts have split is what evidence is required to establish criminal intent when an elected official is prosecuted for accepting political and/or personal contributions and then taking some action, even making some gesture or simply providing more than routine ordinary access to himself/herself or their subordinate government officials arguably in return for that contribution.
The context for this issue being brought forward for judicial determination are the convictions of former Virginia Governor Robert McDonnell and his now estranged wife, former First Lady Maureen McDonnell, for accepting gifts from a former “friend” and the friend’s company. These gifts included six-figure business and personal “loans,” shopping trips, partial payment for a daughter’s wedding reception. Thereafter, the Governor bestowed a gubernatorial blessing in various forms of the friend’s company’s product, vitamin supplements, as well as increased access to certain government officials and facilities.
The question which hopefully the Supreme Court will address is was this “quid pro quo corruption?” A Federal Court jury believed it was based on instructions on the applicable law by a U.S. District Court Judge who reviewed their verdict and agreed with it. A unanimous panel of the 4th Circuit Federal Court of Appeals’ Judges affirmed and the full 4th Circuit Court of Appeals refused to reconsider that decision. Nevertheless other Federal Circuits have taken a different view.
One Circuit Court has held that to establish the 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 exchanged for 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.
In a nutshell then the problem which the U.S. Supreme Court will now attempt to address is as George Will has stated “that the line is blurry between the exercise of constitutional rights and the commission of a crime.” 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 after accepting a campaign contribution from Dreamworks movie company or its owner and then 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 the case of 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.
That blurry line needs to be straightened and brightened by the U.S. Supreme Court. It needs to be straightened with a vision of what the U.S. Supreme Court recognized in the Caperton v. Mussey 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 arrangements that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”