The Supreme Court unanimously vacated former Virginia Governor Bob McDonnell’s public corruption conviction on June 27th, citing an amicus brief signed by former White House Counsel C. Boyden Gray and his predecessors and successors in that post from every presidential administration since Ronald Reagan.
The amicus brief urged the Supreme Court to reject the government’s definition of “official acts” under the federal bribery statute. The White House counsel explained that the government’s broad interpretation “casts a cloud over activities that are fundamental to the operation of a representative democracy.” Affirming the decision below would leave “nothing but prosecutorial discretion” to differentiate politicians who provide “mere access to officials who are willing to listen” from politicians who “agree to exercise (or influence the exercise of) government power.”
In an op-ed for the Washington Post, Gray argued that while “[d]emocracy and the rule of law are threatened by public corruption . . . they are threatened every bit as much by those who would erect a wall between people and their representatives.”
The Supreme Court unanimously agreed. It held that “[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit [the] definition of ‘official act.’” Rather, a government official must “make a decision or take an action” on a “specific and focused” question or matter involving a “formal exercise of governmental power” that is “pending” or “may by law be brought” before that official. The government’s definition of “official act,” by contrast, would “cast a pall of potential prosecution over” the ordinary citizen-official interactions that “[t]he basic compact underlying representative government assumes.”
The McDonnell decision provides needed guidance about what counts as improper political corruption and avoids chilling the ordinary and necessary communication of government officials and their constituents in a representative democracy.