Former Virginia Gov. Bob McDonnell engaged in “tawdry” and “distasteful” behavior, according to a unanimous Supreme Court and anyone who has enough common sense to believe in gravity.
McDonnell accepted about $175,000 in loans and gifts from businessman Jonnie Williams, who, unsurprisingly, wanted something in return for his generosity. Williams wanted McDonnell’s help in obtaining research about his diet supplements, which in return would allow him to get Food and Drug Administration approval for those supplements.
McDonnell was happy to oblige. He set up meeting for Williams, hosted events for him and contacted other government officials about the research studies.
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But none of that was illegal. Federal prosecutors had to show that McDonnell committed an “official act.” A jury convicted McDonnell and an appellate court upheld that conviction. It appeared that McDonnell was headed to prison until the Supreme Court of the United States pressed pause and agreed to hear his case.
The issue was whether McDonnell’s acts could, under the law, be considered “official acts.” Chief Justice John Roberts, writing for a unanimous court, found they were not.
The opinion is both reasonable and utterly depressing.
As a result of the court’s opinion, plenty of really disgusting behavior, like that of McDonnell, is now legal. This is because the court significantly narrowed the types of behavior that are impermissible under the federal bribery statutes by reading the term “official acts” as requiring more than “merely arranging a meeting, attending an event, hosting a reception, or making a speech.” Instead, in order to be found guilty an official must “make a decision or take an action on (an) action or matter.”
The court’s opinion is based on two fears. First, the justices worried that a broader definition of “official acts” would criminalize daily political activities. It strains common sense to think that public officials do not meet with and set up meetings with benefactors. This is how the political world goes round, and a unanimous Supreme Court has acknowledged as much.
This is a sensible but disheartening recognition of what we all know to be true. People with money have more access to and influence over our representatives than the rest of us.
Second, the justices worried that a broader definition of official acts would embolden overzealous prosecutors who would go on political witch hunts. This fear may not be entirely unfounded when it comes to such politically charged cases.
This is not to say that McDonnell’s behavior should be legal. It should not. States can and should enact gift limits that would prohibit large gifts and loans by all but a small subset of people, like close relatives. In fact, Virginia approved similar restrictions in the wake of the McDonnell scandal. Prior to McDonnell’s acceptances of expensive watches, cars and clothes, Virginia had one of the most lax ethics laws in the nation.
McDonnell may still see the inside of a prison cell. Prosecutors are free to retry him under the new standards elucidated by the Supreme Court this week. But the government now faces an uphill battle in proving that behavior taken by a state’s chief executive in exchange for money is illegal.
Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and the president of the Los Angeles Ethics Commission. Contact her at Jessica.Levinson@lls.edu.