Letter to the Editor: Supreme Court decision on public corruption and what it means

Dear Editor,

The U.S. Supreme Court decision to overturn former Virginia governor Bob McDonnell’s conviction will make it more difficult  to prosecute officials for public corruption.

The Supreme court on the surface creates a higher standard for prosecuting corruption, bribes, malfeasance, etc., positing that when an official assists an affluent contributor in giving them access to other state officials, in this case, and among others, researches at a University inVirginia, although the public may find this reprehensible, that this is not necessary illegal.

Monday’s decision “leaves intact the ability of federal prosecutors to go after official misconduct at the state and local level,” said Columbia Law Professor Richard Briffault, and frequent writer and commentator on enforcing standards of ethics. Prosecutors, he said, “have to link up the quid and quo more tightly and show that the gifts influenced real official actions.”

Chief Justice, John Roberts Jr., said that the former governor’s actions were “tawdry” but agreed that instructions to the jury in his case about what constitutes “official acts” were so broad, they could cover almost any action a public official takes.

 

This matter of definitions and also jury instructions most certainly will become a technical loophole in the future to allow officials to push the envelope in terms of what they can get away with, a sort of “get-out-of-jail-free” card, straight from the United States Supreme Court.

“If the court below determines that there is sufficient evidence for a jury to convict Governor McDonnell of committing or agreeing to commit an ‘official act,’ his case may be set for a new trial,” Roberts stated in the unanimous decision. “If the court instead determines that the evidence is insufficient, the charges against him must be dismissed.”

Just so the public doesn’t get the wrong idea, and since they are already totally outraged about the way government has devolved, Roberts made it clear that “There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications
of the Government’s boundless interpretation of the federal bribery statute.”

McDonnell was mightily exuberant and grateful for the reprise, in expressing his thanks for the decision. “Today, a unanimous United States Supreme Court vacated my convictions, and it is a day in which my family and I rejoice and give thanks. From the outset, I strongly
asserted my innocence. .”.”. I have not, and would not, betray the sacred trust the people of Virginia bestowed upon me during 22 years in elected office. It is my hope that this matter will soon be over and that my family and I can begin to rebuild our lives.”

This case revolved on $175,000+ in gifts and loans that the Virginia Governor and his wife willingly received from a dietary supplement executive, including a $6,000 Rolex and $20,000 in clothing, for assisting CEO Jonnie Williams of Star Scientific to get in touch with researchers at the University of Virginia and to officials to try get FDA approval for a
Star Scientific product.

McDonnell’s lawyers maintained that he had never performed any official action on behalf of Williams and his company, and the SCOTUS all agreed, without exception. “Setting up a meeting, calling another public official or hosting an event does not, standing alone, qualify as an official act,” Roberts wrote in Monday’s decision.

The Court remanded the case to the U.S. Court of Appeals for the 4th Circuit to establish that there might or might not be enought evidence that the former Virginia Governor agreed to perform any “official act.”

Former Virginia Attorney General Andrew Miller, from the 1970’s was angry after oral arguments last April when coverage of the Supreme Court’s skepticism about the corruption statute was described in the media as “‘the Supreme Court gets ready to legalize corruption.'” (Seems kind of like that, doesn’t it, really?)

“It is total nonsense,” Miller stated. “The problem instead are the statutes enacted by the Congress, which utilize a vague definition of prohibited conduct giving prosecutors an unchecked authority to go after whomever they choose to go after for doing nothing more than routine constituent services.”

What few real watchdog organizations there are were distraught by the decision. Democracy 21 President Fred Wertheimer said that the ruling “belies reality. If you show the facts in the case to any citizen, themcitizen will conclude that the public official has sold his office for
personal, financial gain.”

“Federal bribery law is not enough to protect the integrity of our democracy,” said Daniel Weiner, senior counsel at the Brennan Center for Justice. “Other common-sense protections, including reasonable limits on both personal gifts and campaign contributions, are absolutely essential.”

One huge case that will be directly affected by this decision is the recent conviction of the one of the most corrupt politicians in the most corrupt state capitol in America: Sheldon Silver, former President of the New York Senate in Albany, convicted of corruption by United States
Attorney for the Southern District, Preet Bharara, and sentenced to 12 years in prison in a $5 million corruption charge. Silver was scheduled to start his term this week, but the federal judge had delayed that, pending the Supreme Court’s decision.

Silver’s lawyers Monday announced the Supreme Court’s decision “will be central” in their appeal, Joel Cohen and Steven Molo said in a statement. “The decision “makes clear that federal government has gone too far in prosecuting state officials for conduct that is part of the everyday functioning of those in elected office.”

Tara Malloy of the Campaign Legal Center, stated that it becomes “even more difficult to protect our democracy from attempts by officeholders to peddle political access and influence to the highest bidder.”

Democracy 21 President Fred Wertheimer said that the ruling “belies reality. If you show the facts in the case to any citizen, the citizen will conclude that the public official has sold his office for personal, financial gain. This decision is bound to further undermine the already
low confidence of citizens in government and public officeholders.”

Roberts made his clarification quixotically vague and even more unclear when he wrote: “Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. If corruption is defined so non-specifically, government public servants would avoid all service to their constituents, is basically his argument and the resolution thereof.

“Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse. None of this, of course, is to suggest that the facts of this case typify normal political interaction between public officials and their constituents. Far from it.

But the government’s legal interpretation is not confined to cases involving extravagant gifts or large sums of money, and we cannot construe a criminal statute on the assumption that the government will ‘use it responsibly.'”

What would Roberts say if and when he may or may not see the compiled evidence about the corruption, fraud, manipulation, vote “flipping,” and other horrendous crimes committed in this primary election series? The very same US Attorney who prosecuted Sheldon Silver, Preet Bharara, was asked to lead the effort into Federal Court to obtain a new repeat Primary
for New York. He never replied to scores if not hundreds of letters.

Same for the Attorney General of New York, Eric Schneidermann, who ignored all of the letters and the 6700 signers of the petition asking him to obtain a Federal Court order for a new NY primary.

The Chief Justice’s trepidation about helping constituents rings kind of true, for a moment, until the very next moment you consider that staggering gift list that ended up in the Governor’s cache, which Roberts dismissed as “tawdry tales of Ferraris, Rolexes, and ball gowns.”

“Unanimous” includes Sotomayor and Ginsburg, and I trust them to have concurred only if they felt it was the right thing to do for what little is left of America’s Democracy. The effects of this unanimous Supreme Court decision will become clearer perhaps too soon. (Don’t forget what Jimmy Carter said recently about the primaries and America in general,
that “we no longer have a functioning democracy.”)

Watch what the pundits, professors, ordinary lower level judges, legal scholars and experts have to say in the near future as they further interpret this decision. I hope it doesn’t open the door and pave the way for levels of corruption like we routinely decry in Third World Nations,
yet routinely excuse and ignore in our own.

This all fits together in my seasoned skeptical and practical political mind as just a further extension of all corporate manipulation of appropriate government regulatory processes, like what the FDA should be doing by statute, giving a green light to even greater abuses for those
who will gleefully push the envelope much further.

This shuts down critics of public corruption even when they are used so sparingly and so intermittently, and sends a chilling almost shocking message to progressives and to supporters of reform efforts like the only one we trust to be President, Bernie Sanders.