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Donald Scarinci, founding partner of Scarinci Hollenbeck. (Photo: Donald Scarinci.)

Scarinci: Modernizing the Line between Politics and Public Corruption

By Donald Scarinci, December 12 2022 8:53 am

Like political campaign contributions, lobbying has been part of the “[P]olitical” process for millennia.  The difference between attempting to influence public policy decisions, including the award of contracts, and basic bribery has never been a bright line.  In America, one is legal, the other is illegal.

In McDonnell v. United States, 579 U.S. ____ (2016),  the U.S. Supreme Court reminded prosecutors that the line isn’t always where they say it is, effectively raising the bar for public corruption cases. The Court is considered a similar case this term, which involves charges against an aide to former New York Gov. Andrew Cuomo.

Public Corruption Charge Requires Official Act

The McDonnell decision stemmed from honest services fraud and Hobbs Act extortion charges against former Virginia Governor Robert McDonnell, and his wife, Maureen McDonnell. The charges were related to their acceptance of loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office.

To convict the McDonnells, prosecutors were required to prove that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts. An “official act” is defined under 18 U. S. C. §201(a)(3) 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.”

Prosecutors alleged that Governor McDonnell committed at least five “official acts,” such as “arranging meetings” for Williams with other Virginia officials to discuss his product, “hosting” events for Williams’ company at the Governor’s Mansion, and “contacting other government officials” concerning the company’s research studies. McDonnell, however, maintained that such actions were political courtesies and did not constitute using his position to influence government matters.

In a unanimous decision, the U.S. Supreme Court rejected federal prosecutors’ broad interpretation of the term “official act.” As Chief Justice John Roberts wrote:

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.”

In reaching its decision, the Supreme Court noted that the government’s expansive interpretation of “official act” would cover nearly all actions with constituents. “[T]he Government’s expansive interpretation of ‘official act’ would raise significant constitutional concerns…In the Government’s view, nearly anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and nearly anything a public official does—from arranging a meeting to inviting a guest to an event— counts as a quo,” the Chief Justice wrote. “But conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm.”

The Court also expressed concern that such a broad interpretation of “official act” would discourage the public from interacting with elected officials. “The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame,” Chief Justice Roberts wrote. “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. This concern is substantial.”

Latest Issues Before the Supreme Court

The latest public corruption case before the Supreme Court is brought by Joseph Percoco who was serving as the campaign manager for Gov. Cuomo’s reelection when he was allegedly paid $35,000 to help a developer navigate the state bureaucracy. The Second Circuit Court of Appeals found that Percoco owed a duty of honest services to the public because, as a former high-ranking staffer and longtime friend of the Governor, he continued to command “clout” with state agencies and officials. However, Percoco argued in his petition for certiorari that he is just the latest victim of prosecutorial overreach.

The Supreme Court heard oral arguments in the case on November 28, 2022. The justices have agreed to consider the following question: “Whether a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decision-making, owes a fiduciary duty to the general public such that he can be convicted of honest-services fraud.”

With the Supreme Court again poised to clarify the scope of the honest-services fraud statute, it would not be surprising if the justices again limit the government’s authority to prosecute under the statute.

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