Rewarding Subtlety: McDonnell v. United States

by Daniel Richman and Jennifer Rodgers

As teachers, we sometimes push our students to clarify their legal arguments by telling them that “subtlety isn’t rewarded.”  As former prosecutors, we like to think that corrupt officials can’t avoid prosecution simply by avoiding B-movie exchanges that they will do “x” if they are given “y.”  This week’s decision in McDonnell v. United States (PDF: 158 KB), however, could be a lesson that subtlety may indeed be rewarded, and that gentility could protect a high official from federal corruption charges.

Chief Justice Roberts’ opinion for a unanimous Court nicely laid out the material aspects of the relationship between Jonnie Williams, the owner of Star Scientific, and Governor McDonnell and his wife.  Soon after helping the Governor’s election campaign by offering him a lift in his private plane, Williams asked for the Governor’s help in getting Virginia’s public universities to do research studies on a Star Scientific product called Anatabloc — a nutritional supplement made from part of the tobacco plant.  The Governor was more than happy to oblige, and thus began a beautiful relationship.  He and his wife set up meetings between Williams and various officials in his administration, hosted a reception for Star, and promoted Anatabloc’s virtues.  For his part, Williams went beyond plane rides, supplying the Governor and his family with free vacations and golf rounds, and the use of his Ferrari.  He loaned the McDonnells a total of $100,000 to help with the couple’s cash flow problems, and gave them a gift of $15,000 to help pay for their daughter’s wedding.  Williams also bought the Governor a Rolex watch and treated his wife to a $20,000 designer clothing shopping spree.

Any savvy observer would read this scenario as a pretty straightforward wooing of a Governor by a business owner and the sustained effort by a grateful but not heavy-handed Governor to put his Administration at the owner’s disposal.  And the connection between what McDonnell asked for and what he delivered could not have escaped the Governor, who, minutes after discussing with Williams a $50,000 loan McDonnell and his wife wanted, checked with the Governor’s counsel about Anatabloc issues at Virginia’s universities.

Given that the Hobbs Act’s extortion “under color of law” provision targets the illegitimate use of one’s office for personal gain, one might have expected it to cover McDonnell’s use of Williams as a piggybank. To be sure, the Supreme Court and lower courts have tamed that broad provision (in much the way the Court tamed the “honest services” theory of mail and wire fraud in Skilling (PDF: 672 KB)) by requiring a quid pro quo – an understood connection between official action and personal benefits. But particularly outside of the campaign contribution context, courts have not demanded a fine-grained specificity in how an official agreed to deliver his office.

Reversing the McDonnells’ Hobbs Act and honest services fraud convictions, the Supreme Court demanded just this specificity.  But its analysis was driven by, and may be limited by, the way the parties presented the case.  Because the quid pro quo requirements of both the Hobbs Act and the honest services provision have been created, but never fleshed out, by courts, the parties turned to the federal bribery statute, 18 U.S.C. § 201, to define what “official acts” an official must agree to do in order to be guilty.  Section 201 applies only to federal officials, and therefore couldn’t have been used against McDonnell, but it does have a high degree of specificity.  Under § 201, an official act is “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”  At the McDonnells’ trial, the District Court quoted this definition to the jury, and instructed that it included “acts that a public official customarily performs,” including “acts in furtherance of longer-term goals.”

Accepting the parties’ framework – at least for purposes of this case – the Court’s opinion found these jury instructions grievously inadequate.  An “official act,” the Court reasoned, has to “involve a formal exercise of governmental power” and must be “specific and focused” on something “pending” or that “may by law be brought” before a public official. Actions like setting up meetings, talking with other officials, or organizing events, without more, do not, the Court held, meet the “official act” standard, although pressuring or advising another official to commit an official act would.

So, what does this all mean?  What impact will McDonnell really have?  Obviously the newly narrowed definition of official action would apply to a retrial of the McDonnells themselves (if there is to be one).  It is quite possible that a properly instructed jury would find that the Governor’s actions did in fact constitute pressure on or advice to other officials on a qualifying question or matter.  Or, a new jury might find that the Governor successfully threaded the needle; that by being courteous and encouraging but not bullying or overbearing he provided access to Williams that did not amount to commission of an “official act.” Under the Court’s analysis, the fact that McDonnell exercised the power of his office over state health and academic personnel at the request of, and for the benefit of, a financial benefactor would not support a conviction in the absence of a connection to something more than meetings.

Some questions to consider when thinking about McDonnell’s impact beyond that individual case: Will the Court’s recourse to the § 201 “official act” definition in a case charged under extortion and theft of honest service statutes be taken as an authoritative restriction of those statutes or just an artifact of the way the case was presented?  Might lower courts find that there is something different about those statutes that would allow for continued use of less structured definitions of “official act?”  And does that even matter, or is the universe of cases that McDonnell will affect – namely those cases in which whether “official action” occurred is a real question — actually quite limited?

In other words, is McDonnell a game-changer for prosecutors across the board in corruption cases?  We think probably not.  The vast majority of corruption cases involve official favors that fall clearly within the McDonnell definition.  Think Sheldon Silver directing money from an Assembly slush fund, or Dean Skelos’s offer to influence legislation pending before the Senate.  Those cases in which it is not entirely clear that governmental power was exercises or promised – the McDonnells of the world – are likely to be few and far between.  But for that small number of cases, it may be true that civility counts.

Daniel Richman is the Paul J. Kellner Professor of Law at Columbia University and Jennifer Rodgers is the Executive Director of the Center for the Advancement of Public Integrity and a Lecturer-in-Law at Columbia Law School.


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