Former Virginia Gov. Bob McDonnell speaks outside the Supreme Court in Washington, Wednesday, after the court heard arguments in his corruption case. (AP/Andrew Harnik)
If it wasn’t clear just how much trouble the government’s corruption prosecution of former Virginia Gov. Robert McDonnell was, Chief Justice John Rob­erts Jr. left no doubt during U.S. Supreme Court oral arguments on April 27.
Seconds after deputy solicitor general Michael Dreeben began defending the government, Roberts interrupted to ask about what he called an “extraordinary document,” an amicus curiae brief on behalf of former White House counsels and Justice Department lawyers asserting that upholding the prosecution “will ­cripple the ability of elected officials to fulfill their role in our representative democracy.”
Dreeben gamely replied: “It may be extraordinary, Mr. Chief Justice, but that doesn’t make it correct.”
It was a dramatic moment that crystallized the gulf between the government’s long-standing definition of “official acts” that can lead to bribery convictions and the court’s growing perception that some prosecutors are overreaching and stretching the scope of criminal laws beyond recognition.
In the case before the court, McDonnell was convicted in 2014 for taking gifts and money from Virginia businessman Johnnie Williams in exchange for what the government said were “official acts.” Those acts included arranging meetings and attending events that could benefit Williams’ diet-supplement company.
Justice Stephen Breyer, drawing on his prior experience as a Senate staffer and Justice Department lawyer, sounded the alarm early and often during the argument about the vagueness of the phrase “official acts.”
“My goodness,” Breyer exclaimed at one point as he questioned McDonnell’s lawyer Noel Francisco, a Jones Day partner. “Letters go by the dozens over to the secretary of HUD, to the secretary of HHS … and they say, ‘My constituent Smith has a matter before you that has been pending for 18 months; we would appreciate it if you would review that and take action.’ … A crime? My goodness.”
Francisco agreed that was not a crime, asserting that official actions cross the line only when the official seeks to influence an independent decision-maker or “put your thumb on the scales” to bring about a certain outcome.
But Dreeben said that interpretation would ignore decades or centuries of precedent on bribery statutes and give the green light to individuals paying government officials to “take a meeting.”
Dreeben, arguing his 100th case, made the point in response to an unusually personal hypothetical that Roberts directed at him.
“Somebody in the government whose client comes to them and says, ‘We’d really like the solicitor general’s office to file a brief in our case,’ ” Roberts said. “ And then that person calls you up and says, ‘Can you meet with so or so.’ All he wants to do is sit down with you and persuade you why you should file a brief supporting his case.”
Without hesitation Dreeben said that “if somebody pays me” for the access, it would be a felony. “Getting in the door, Mr. Chief Justice, is one of the absolutely critical things,” adding that “taking a meeting is absolutely government action.”
Hypothetical scenarios dominated the argument as the justices tried, without much success, to find a “limiting principle” that would not hamper the functioning of government while also not condoning bribery.
Justice Elena Kagan offered a hypothetical in which a contractor pays a government official just to be able to attend a meeting where a list of potential contract awardees would be drawn up.
Justice Anthony Kennedy had another hypothetical for Francisco: “The janitor who gets the bottle of beer in order to clean your classroom first … is that a governmental act?”‘ Definitely not, Francisco said, but some of the other hypotheticals, he said, could violate other laws besides those at issue in the McDonnell case.
Breyer posited an “expensive lunch” with a government official where Chateau Lafite wine is poured. “That’s worth, like, a thousand dollars, or $500, anyway,” Breyer said. “I don’t go to those restaurants anymore.”
To test the less expensive end of the spectrum, Roberts suggested a corporate CEO who wants tax credits for locating a plant in a certain state. The executive tells the governor: “Look, why don’t you come down to my … trout stream and we’ll talk about this.”
Dreeben said that was not likely to be viewed as a felony, but a “more nefarious” gift of a Hawaii vacation might.
No matter what the outcome of the case is, the oral argument produced one winner already: Gibson, Dunn & Crutcher partner David Debold, counsel of record in the brief Chief Justice Roberts called “extraordinary.” Debold, speaking with The National Law Journal last week, said it was not difficult to recruit former White House counsels and others from both parties for the brief.
That might come as a surprise to Roberts. “It’s extraordinary that those people agree on anything,” Roberts said at oral argument.