Would You Have Convicted Governor McDonnell of Bribery?

[Nous]

On another thread, the issue of bribery of public officials was raised. Apparently many Americans believe that most all public officials are corrupt and taking bribes left and right--or at least those officials of the party that one invariably votes against. But I get the impression that many people are not clear about what sorts of acts constitute bribery.

So the following is the Court's narrative of the relevant acts engaged in by Virginia's former Governor Bob McDonnell. I would like to know whether you would say that McDonnell was guilty or not guilty of bribery, in violation of 18 USC §201. This statute makes it a crime for "a public official or person selected to be a public official, directly or indirectly, corruptly” to demand, seek, receive, accept, or agree “to receive or accept anything of value” in return for being “influenced in the performance of any official act.” §201(b)(2). An "official act" is defined as “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.” §201(b)(2). https://www.law.cornell.edu/uscode/text/18/201

If you say that McDonnell engaged in bribery, I ask that you specify the illegal "official act(s)" that McDonnell performed, which must be "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.”

On November 3, 2009, petitioner Robert McDonnell was elected the 71st Governor of Virginia. His campaign slogan was “Bob’s for Jobs,” and his focus in office was on promoting business in Virginia. As Governor, McDonnell spoke about economic development in Virginia “on a daily basis” and attended numerous “events, ribbon cuttings,”and “plant facility openings.” App. 093, 5241. He also referred thousands of constituents to meetings with members of his staff and other government officials. According to longtime staffers, Governor McDonnell likely had more events at the Virginia Governor’s Mansion to promote Virginia business than had occurred in “any other administration.” Id., at 4093.

This case concerns Governor McDonnell’s interactions with one of his constituents, Virginia businessman Jonnie Williams. Williams was the CEO of Star Scientific, a Virginia-based company that developed and marketed Anatabloc, a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped to obtain Food and Drug Administration approval of Anatabloc as an anti-inflammatory drug. An important step in securing that approval was initiating independent research studies on the health benefits of anatabine. Star Scientific hoped Virginia’s public universities would undertake such studies, pursuant to a grant from Virginia’s Tobacco Commission.

Governor McDonnell first met Williams in 2009, when Williams offered McDonnell transportation on his private airplane to assist with McDonnell’s election campaign. Shortly after the election, Williams had dinner with Governor and Mrs. McDonnell at a restaurant in New York. The conversation turned to Mrs. McDonnell’s search for a dress for the inauguration, which led Williams to offer to purchase a gown for her. Governor McDonnell’s counsel later instructed Williams not to buy the dress, and Mrs. McDonnell told Williams that she would take a rain check. Id., at 2203–2209.

In October 2010, Governor McDonnell and Williams met again on Williams’s plane. During the flight, Williams told Governor McDonnell that he “needed his help” moving forward on the research studies at Virginia’s public universities, and he asked to be introduced to the person that he “needed to talk to.” Id., at 2210–2211. Governor McDonnell agreed to introduce Williams to Dr. William Hazel, Virginia’s Secretary of Health and Human Resources. Williams met with Dr. Hazel the following month, but the meeting was unfruitful; Dr. Hazel was skeptical of the science behind Anatabloc and did not assist Williams in obtaining the studies. Id., at 2211– 2217, 3738–3749.

Six months later, Governor McDonnell’s wife, Maureen McDonnell, offered to seat Williams next to the Governor at a political rally. Shortly before the event, Williams took Mrs. McDonnell on a shopping trip and bought her $20,000 worth of designer clothing. The McDonnells later had Williams over for dinner at the Governor’s Mansion, where they discussed research studies on Anatabloc. Id., at 6560.

Two days after that dinner, Williams had an article about Star Scientific’s research e-mailed to Mrs. McDonnell, which she forwarded to her husband. Less than an hour later, Governor McDonnell texted his sister to discuss the financial situation of certain rental properties they owned in Virginia Beach. Governor McDonnell also e-mailed his daughter to ask about expenses for her upcoming wedding.
​

(continued)

 

[Nous]

The next day, Williams returned to the Governor’s Mansion for a meeting with Mrs. McDonnell. At the meeting, Mrs. McDonnell described the family’s financial problems, including their struggling rental properties in Virginia Beach and their daughter’s wedding expenses. Mrs. McDonnell, who had experience selling nutritional supplements, told Williams that she had a background in the area and could help him with Anatabloc. According to Williams, she explained that the “Governor says it’s okay for me to help you and--but I need you to help me. I need you to help me with this financial situation.” Id., at 2231. Mrs. McDonnell then asked Williams for a $50,000 loan, in addition to a $15,000 gift to help pay for her daughter’s wedding, and Williams agreed.

Williams testified that he called Governor McDonnell after the meeting and said, “I understand the financial problems and I’m willing to help. I just wanted to make sure that you knew about this.” Id., at 2233. According to Williams, Governor McDonnell thanked him for his help. Ibid. Governor McDonnell testified, in contrast, that he did not know about the loan at the time, and that when he learned of it he was upset that Mrs. McDonnell had requested the loan from Williams. Id., at 6095–6096. Three days after the meeting between Williams and Mrs. McDonnell, Governor McDonnell directed his assistant to forward the article on Star Scientific to Dr. Hazel.

In June 2011, Williams sent Mrs. McDonnell’s chief of staff a letter containing a proposed research protocol for the Anatabloc studies. The letter was addressed to Governor McDonnell, and it suggested that the Governor “use the attached protocol to initiate the ‘Virginia Study’ of Anatabloc at the Medical College of Virginia and the University of Virginia School of Medicine.” Id., at 2254. Governor McDonnell gave the letter to Dr. Hazel. Id., at 6121–6122. Williams testified at trial that he did not “recall any response” to the letter. Id., at 2256.

In July 2011, the McDonnell family visited Williams’s vacation home for the weekend, and Governor McDonnell borrowed Williams’s Ferrari while there. Shortly thereafter, Governor McDonnell asked Dr. Hazel to send an aide to a meeting with Williams and Mrs. McDonnell to discuss research studies on Anatabloc. The aide later testified that she did not feel pressured by Governor or Mrs. McDonnell to do “anything other than have the meeting,” and that Williams did not ask anything of her at the meeting. Id., at 3075. After the meeting, the aide sent Williams a “polite blow-off ” e-mail. Id., at 3081.

At a subsequent meeting at the Governor’s Mansion, Mrs. McDonnell admired Williams’s Rolex and mentioned that she wanted to get one for Governor McDonnell. Williams asked if Mrs. McDonnell wanted him to purchase a Rolex for the Governor, and Mrs. McDonnell responded, “Yes, that would be nice.” Id., at 2274. Williams did so, and Mrs. McDonnell later gave the Rolex to Governor McDonnell as a Christmas present.

In August 2011, the McDonnells hosted a lunch event for Star Scientific at the Governor’s Mansion. According to Williams, the purpose of the event was to launch Anatabloc. See id., at 2278. According to Governor McDonnell’s gubernatorial counsel, however, it was just lunch. See id., at 3229–3231.

The guest list for the event included researchers at the University of Virginia and Virginia Commonwealth University. During the event, Star Scientific distributed free samples of Anatabloc, in addition to eight $25,000 checks that researchers could use in preparing grant proposals for studying Anatabloc. Governor McDonnell asked researchers at the event whether they thought “there was some scientific validity” to Anatabloc and “whether or not there was any reason to explore this further.” Id., at 3344. He also asked whether this could “be something good for the Commonwealth, particularly as it relates to economy or job creation.” Ibid. When Williams asked Governor McDonnell whether he would support funding for the research studies, Governor McDonnell “very politely” replied, “I have limited decision-making power in this area.” Id., at 3927.

In January 2012, Mrs. McDonnell asked Williams for an additional loan for the Virginia Beach rental properties, and Williams agreed. On February 3, Governor McDonnell followed up on that conversation by calling Williams to discuss a $50,000 loan.

Several days later, Williams complained to Mrs. McDonnell that the Virginia universities were not returning Star Scientific’s calls. She passed Williams’s complaint on to the Governor. While Mrs. McDonnell was driving with Governor McDonnell, she also e-mailed Governor McDonnell’s counsel, stating that the Governor “wants to know why nothing has developed” with the research studies after Williams had provided the eight $25,000 checks for preparing grant proposals, and that the Governor “wants to get this going” at the universities. Id., at 3214, 4931. According to Governor McDonnell, however, Mrs. McDonnell acted without his knowledge or permission, and he never made the statements she attributed to him. Id., at 6306–6308.

On February 16, Governor McDonnell e-mailed Williams to check on the status of documents related to the $50,00 loan. A few minutes later, Governor McDonnell e-mailed his counsel stating, “Please see me about Anatabloc issues at VCU and UVA. Thanks.” Id., at 3217. Governor McDonnell’s counsel replied, “Will do. We need to be careful with this issue.” Ibid. The next day, Governor McDonnell’s counsel called Star Scientific’s lobbyist in order to “change the expectations” of Star Scientific regarding the involvement of the Governor’s Office in the studies. Id., at 3219.

At the end of February, Governor McDonnell hosted a healthcare industry reception at the Governor’s Mansion which Williams attended. Mrs. McDonnell also invited a number of guests recommended by Williams, including researchers at the Virginia universities. Governor McDonnell was present, but did not mention Star Scientific, Williams, or Anatabloc during the event. Id., at 3671–3672. That same day, Governor McDonnell and Williams spoke about the $50,000 loan, and Williams loaned the money to the McDonnells shortly thereafter. Id., at 2306, 2353.

In March 2012, Governor McDonnell met with Lisa Hicks-Thomas, the Virginia Secretary of Administration, and Sara Wilson, the Director of the Virginia Department of Human Resource Management. The purpose of the meeting was to discuss Virginia’s health plan for state employees. At that time, Governor McDonnell was taking Anatabloc several times a day. He took a pill during the meeting, and told Hicks-Thomas and Wilson that the pills “were working well for him” and “would be good for” state employees. Id., at 4227. Hicks-Thomas recalled Governor McDonnell asking them to meet with a representative from Star Scientific; Wilson had no such recollection. Id., at 4219, 4227. After the discussion with Governor McDonnell, Hicks-Thomas and Wilson looked up Anatabloc on the Internet, but they did not set up a meeting with Star Scientific or conduct any other follow-up. Id., at 4220, 4230. It is undisputed that Virginia’s health plan for state employees does not cover nutritional supplements such as Anatabloc.

In May 2012, Governor McDonnell requested an additional $20,000 loan, which Williams provided. Throughout this period, Williams also paid for several rounds of golf for Governor McDonnell and his children, took the McDonnells on a weekend trip, and gave $10,000 as a wedding gift to one of the McDonnells’ daughters. In total, Williams gave the McDonnells over $175,000 in gifts and loans.​

McDonnell v. US, 579 U. S. ____ (2016)

 

[BSM1]

No.

 

[icehorse]

TL-skimmed - it seems like some bribery happened in there somewhere. "Intention" drives a lot of legal situations, and intention seems pretty obvious in this case.

 

[Nous]

TL-skimmed - it seems like some bribery happened in there somewhere.

The statute requires that the government prove that McDonnell performed, agreed to perform, or pressured someone else to perform an "official act," as defined by §201(a)(3), quoted in the OP. Specify what was the "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," which you believe McDonnell performed in exchange for money or favors from Williams.

 

[Nous]

No.

Of course, 12 jurors disagreed with you. But they got the wrong jury instruction. I wonder if they would have arrived at a different verdict if they had gotten the right instruction that McDonnell requested?

 

[Sapiens]

But he's a scumbag anyway, that's clear.

 

[BSM1]

Of course, 12 jurors disagreed with you. But they got the wrong jury instruction. I wonder if they would have arrived at a different verdict if they had gotten the right instruction that McDonnell requested?

I believe so.

But he's a scumbag anyway, that's clear.

Why do you say that?

 

[icehorse]

The statute requires that the government prove that McDonnell performed, agreed to perform, or pressured someone else to perform an "official act," as defined by §201(a)(3), quoted in the OP. Specify what was the "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," which you believe McDonnell performed in exchange for money or favors from Williams.

I claim no legal expertise. All I'm saying is that it seems to me there was an "intent" to accept bribes. It could well be that legal fancy footwork allows him to escape, but it would be on a technicality.

 

[Nous]

But he's a scumbag anyway, that's clear.

Repeating BSM1's question: Why do you say that?

 

[Nous]

I believe so.

I'm not so sure. In the first place, juries these days will convict a head of lettuce of a crime. In the second place, I think many people like the idea that politicians are corrupt and continuously engaged in wrongdoing that harms the public. I suspect it's part of a world view. I think that many people, in a sense, need the belief that politicians are corrupt, in order to try to explain their own dissatisfactions--the reason that life is not wonderful and easy for me and/or others is because a politician somewhere took a bribe.

 

[Nous]

I claim no legal expertise.

Neither did any of the jurors have any legal expertise (presumably).

All I'm saying is that it seems to me there was an "intent" to accept bribes.

Are you saying that you would have convicted McDonnell not on the basis of him performing an "official act" as the statute requires, but merely because you believe he had an "intention" to accept a bribe, which is not something you have deduced from any particular act?

Would you want to be convicted of, say, tax evasion, not because you actually engaged in an act that the law prohibits, but because the jurors merely believed you had an "intention" to engage in tax evasion?

Anyway, see next post.

 

[Nous]

As the Court notes, the government alleged that McDonnell performed at least 5 acts that supposedly meet the definition of an "official act":

(1) “arranging meetings for [Williams] with Virginia government officials, who were subordinates of the Governor, to discuss and promote Anatabloc”;

(2) “hosting, and . . . attending, events at the Governor’s Mansion designed to encourage Virginia university researchers to initiate studies of anatabine and to promote Star Scientific’s products to doctors for referral to their patients”;

(3) “contacting other government officials in the [Governor’s Office] as part of an effort to encourage Virginia state research universities to initiate studies of anatabine”;

(4) “promoting Star Scientific’s products and facilitating its relationships with Virginia government officials by allowing [Williams] to invite individuals important to Star Scientific’s business to exclusive events at the Governor’s Mansion”; and

(5) “recommending that senior government officials in the [Governor’s Office] meet with Star Scientific executives to discuss ways that the company’s products could lower healthcare costs.”​

http://www.supremecourt.gov/opinions/15pdf/15-474_ljgm.pdf

Do you believe that these are acts that governors should not be engaging in, that such acts are indicative of bribe-taking?

Exactly what is the difference between these acts and the acts that a governor might perform in order promote a new industry in the state?

Should governors and other elected state officials be disallowed from encouraging the development of new industries in the state?

 

[icehorse]

Are you saying that you would have convicted McDonnell not on the basis of him performing an "official act" as the statute requires, but merely because you believe he had an "intention" to accept a bribe, which is not something you have deduced from any particular act?

Would you want to be convicted of, say, tax evasion, not because you actually engaged in an act that the law prohibits, but because the jurors merely believed you had an "intention" to engage in tax evasion?

Please don't guess about my reasoning

Your post mentioned that - among other things - they received $20,000 in clothes and a Rolex watch. How could it be that he didn't "intend" to accept those gifts? And I think most reasonable people would conclude that when you get into the tens of thousands of dollars, you're really stretching the definition of "gifts between acquaintances". So this just seems like common sense, what am I missing?

 

[BSM1]

Please don't guess about my reasoning

Your post mentioned that - among other things - they received $20,000 in clothes and a Rolex watch. How could it be that he didn't "intend" to accept those gifts? And I think most reasonable people would conclude that when you get into the tens of thousands of dollars, you're really stretching the definition of "gifts between acquaintances". So this just seems like common sense, what am I missing?

I'm from VA and, although I may be totally fooled, then this seems really out of character for the governor. However, I don't hold the same opinion about the missus.

 

[Nous]

Your post mentioned that - among other things - they received $20,000 in clothes and a Rolex watch. How could it be that he didn't "intend" to accept those gifts? And I think most reasonable people would conclude that when you get into the tens of thousands of dollars, you're really stretching the definition of "gifts between acquaintances". So this just seems like common sense, what am I missing?

It seems you're missing this: Bribery requires an act of quid pro quo. For a public official to merely accept gifts or loans is not enough to constitute bribery. If it were, then the President accepting the replica sports jerseys from champion teams each year would make both parties guilty of bribery. Section 201 of the federal statute requires that the official perform, agree to perform or pressure someone else to perform an "official act," which is a "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.”

Note especially the words "cause, suit, proceeding or controversy." These are words that refer to legal exercises. And under the rule of construction noscitur a sociis, the other words in the list ("question, matter") should be consistent with this context. The decision or act must concern something that some public official is going to do or could do in his/her official capacity. But when you look at the list of the 5 acts that the government said were "official acts," there's nothing there where McDonnell performed, agreed to perform or pressured anyone to perform an "official act".

 

[Nous]

I'm from VA and, although I may be totally fooled, then this seems really out of character for the governor. However, I don't hold the same opinion about the missus.

Yeah, her statements are rather incriminating. Though the Court's decision will definitely motivate an appeal for her.

 

[icehorse]

I'm from VA and, although I may be totally fooled, then this seems really out of character for the governor. However, I don't hold the same opinion about the missus.

I have no prior knowledge of these folks, just what's in this thread.

 

[icehorse]

It seems you're missing this: Bribery requires an act of quid pro quo. For a public official to merely accept gifts or loans is not enough to constitute bribery. If it were, then the President accepting the replica sports jerseys from champion teams each year would make both parties guilty of bribery. Section 201 of the federal statute requires that the official perform, agree to perform or pressure someone else to perform an "official act," which is a "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.”

Note especially the words "cause, suit, proceeding or controversy." These are words that refer to legal exercises. And under the rule of construction noscitur a sociis, the other words in the list ("question, matter") should be consistent with this context. The decision or act must concern something that some public official is going to do or could do in his/her official capacity. But when you look at the list of the 5 acts that the government said were "official acts," there's nothing there where McDonnell performed, agreed to perform or pressured anyone to perform an "official act".

Again, I'm no lawyer, but it seems that many court cases involve edge cases. Cases in which people are skating right on the edge of legality. I don't know what the relevant precedence would be for determining "intent", but again based on what you reported, the intention of a quid pro quo seems clear here. Now perhaps you could argue that the prosecution would need to deliver more evidence, and that might well be from a legal perspective. But if we could look into the politician's mind, I'd bet that his intentions weren't legal. A lot of people understand the law well enough to do illegal stuff and get away with it. So guess would be that the politician knowingly did illegal stuff and also knew how to work the technicalities in the system to avoid conviction.

 

[Nous]

Again, I'm no lawyer, but it seems that many court cases involve edge cases. Cases in which people are skating right on the edge of legality. I don't know what the relevant precedence would be for determining "intent", but again based on what you reported, the intention of a quid pro quo seems clear here. Now perhaps you could argue that the prosecution would need to deliver more evidence, and that might well be from a legal perspective. But if we could look into the politician's mind, I'd bet that his intentions weren't legal. A lot of people understand the law well enough to do illegal stuff and get away with it. So guess would be that the politician knowingly did illegal stuff and also knew how to work the technicalities in the system to avoid conviction.

The following is from the syllabus of the Supreme Court's unanimous decision in the case, delivered a couple of days ago. I think you should put forth an effort to understand it:

To convict the McDonnells, the Government was required to show that Governor Donnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts. An “official act” is defined as “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.” 18 U. S. C. §201(a)(3). According to the Government, Governor McDonnell committed at least five “official acts,” including “arranging meetings” for Williams with other Virginia officials to discuss Star Scientific’s product, “hosting” events for Star Scientific at the Governor’s Mansion, and “contacting other government officials” concerning the research studies.

The case was tried before a jury. The District Court instructed the jury that “official act” encompasses “acts that a public official customarily performs,” including acts “in furtherance of longer-term goals” or “in a series of steps to exercise influence or achieve an end.” Supp. App. 69–70. Governor McDonnell requested that the court further instruct the jury that “merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, ‘official acts,’ ” but the District Court declined to give that instruction. 792 F. 3d 478, 513 (internal quotation marks omitted). The jury convicted Governor McDonnell.

Governor McDonnell moved to vacate his convictions on the ground that the definition of “official act” in the jury instructions was erroneous. He also moved for acquittal, arguing that there was insufficient evidence to convict him, and that the Hobbs Act and honest services statute were unconstitutionally vague. The District Court denied the motions, and the Fourth Circuit affirmed.

Held:

1. An “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” That question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that question or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event--without more--does not fit that definition of “official act.” Pp. 13–24.​

http://www.supremecourt.gov/opinions/15pdf/15-474_ljgm.pdf

Continue reading.

I think it's a good thing for the electorate to understand what the crime of bribery by a public official actually is. It seems so few lay people do.