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A “view” from the Courtroom: Official actions and reactions

It’s the last day of oral argument for the Term, and the Court has one big case to deal with: McDonnell v. United States, about whether “official action” under the relevant federal fraud statutes is limited to exercising actual government power, or pressuring others to exercise such power, and related questions.

The petitioner, former Virginia governor Robert F. McDonnell, was convicted of various counts of “honest services” wire fraud, conspiracy to obtain property of official right, and obtaining property under color of official right. He was sentenced to twenty-four months in prison, but is free while this appeal is pending.

And today, McDonnell was seen slipping in a side door of the Court and is seated in the second row of the public gallery. On his right is his wife, Maureen, who was also convicted in the same sensational trial of charges related to dealings with a businessman who was seeking promotion from the governor’s mansion for a dietary supplement. Her case is pending on appeal in the U.S. Court of Appeals for the Fourth Circuit and is not before the justices today.

We’re in no position to assess the current state of the McDonnells’ marriage, which has been strained by the criminal case, but they are together here today.

On Robert McDonnell’s left is his youngest daughter, Rachel, according to a couple of Virginia reporters who are near me in the press section. And the former governor’s sisters, Maureen and Eileen, are here as well, seated in another row.

As the start of the court session approaches, McDonnell puts his arm around his daughter, and we are able to see that he is wearing a fairly big watch on his left wrist. It is not the $6,000 Rolex that the businessman, Jonnie Williams, bought for McDonnell, as that and other gifts were mostly returned.

When the Justices take the bench, there are a small number of lawyers to be admitted to the Supreme Court Bar. One of them is Gail Laster, the wife of U.S. Solicitor General Donald B. Verrilli, Jr. He makes the introduction of his wife, and as usually happens in such cases, everyone chuckles when he says he is satisfied that she has met the necessary qualifications.

Then, it is on to the argument. Noel J. Francisco argues for the former governor that the federal government’s interpretation of the relevant statutes is wrong and that “in order to engage in ‘official action,’ an official must either make a government decision or urge someone else to do so.”

The questioning is active, though the Justices do not seem particularly hostile to Francisco. There are several of what I have called verbal face-offs, in which two Justices seek to ask questions at the same time, and one has to back down. Justice Elena Kagan tries four times to start a question of Francisco, but she defers to her colleagues before finally getting the floor.

It’s clear the Justices are looking for a limiting principle for when official action becomes a crime.

Deputy Solicitor General Michael R. Dreeben takes to the lectern for the United States. He is quickly interrupted by Chief Justice John G. Roberts, Jr., who refers to “an extraordinary document” that has been filed on McDonnell’s side.

He’s referring to an amicus brief submitted by several former White House counsels (and other high-ranking officials from both Democratic and Republican administrations) – including, Roberts points out, those who have served Presidents Barack Obama, George W. Bush, Bill Clinton, and George H.W. Bush.

“And they say, quoting their brief, that ‘if this decision is upheld, it will cripple the ability of elected officials to fulfill their role in our representative democracy,’” Roberts says. “Now, I think it’s extraordinary that those people agree on anything.”

“It may be extraordinary, Mr. Chief Justice, but that doesn’t make it correct,” Dreeben responds. “I think it rests on several fundamental misconceptions about what government actually does.”

Dreeben is tenacious throughout the argument.

When Justice Stephen G. Breyer expresses concern that the kind of routine courtesies and communications that public officials sometimes make on behalf of favored constituents might be a “recipe for giving the Department of Justice and the prosecutors enormous power over elected officials,” Dreeben says, “I’m going to push back, because I think that the line that petitioner has urged is one that is a recipe for corruption, not a recipe for drawing a safe harbor for public officials.”

Throughout the argument, McDonnell keeps a sober and intent look on his face, only briefly cracking a grin at some of the more humorous moments.

The Justices’ hypotheticals took the lawyers from the fishing hole to the finest restaurants.

Roberts wondered about a state governor who invites a CEO looking to build a new plant “down to my … trout stream and we’ll go fishing and we’ll talk about this.

“And the governor does that,” Roberts says. “He has a nice day fishing for trout, and they talk about whether they can get tax credits, deferred taxes if the CEO opens his plant in the state. Now, is that a felony, because he’s accepted an afternoon of trout fishing, and he discussed official business at that time?”

No, says Dreeben, but if instead of trout fishing the CEO said “I’ll fly you out to Hawaii and you and your family can have a vacation,” that would be different.

Roberts says he thought the size of the “quid” in “quid pro quo” didn’t matter.

“When you change the trout fishing to a trip to Hawaii, it becomes more nefarious,” Dreeben says.

Breyer asks Dreeben about a lunch between a government official and a favor seeker “with the Château Lafite” wine.

“That’s worth, like, a thousand dollars, or five hundred, anyway,” Breyer says. “I don’t go to those restaurants anymore.”

Dreeben continues to get tough questioning from the Chief Justice and Justices Breyer, Alito, and Kagan.

When Francisco returns to the lectern, Justice Ruth Bader Ginsburg asks him about Dreeben’s concern, that if they read the statute as Francisco is urging, “Then every government official can say, ‘You want to have a meeting? Pay me a thousand dollars.’”

Francisco says that “these broad and vague statutes are not comprehensive codes of ethical conduct.”

“There are lots of other statutes that would prohibit precisely what you are suggesting, Justice O’Connor, and you don’t have to interpret …” he says, quickly realizing his error, as does the entire Courtroom.

Ginsburg smiles and says, “That hasn’t happened in quite some time.” In fact, Ginsburg has discussed publicly how in her early years on the Court, lawyers would all too often confuse her and Justice Sandra Day O’Connor.

Francisco apologizes profusely. “Justice Ginsburg, I am very, very, very sorry,” he says.

Just as Francisco’s red light comes on, Justice Sonia Sotomayor poses a question, and Roberts patiently allows the lawyer to answer for several seconds, but he pounces at the first pause to say, “Thank you, counsel.”

The Chief Justice has one unexpected piece of business.

“Mr. Dreeben, could I invite you to return to the lectern?” Roberts says. “Our records reflect that this was your one-hundredth oral argument before the Court. You are the second person to reach that rare milestone this century.”

“I distinctly recall your first argument in January of 1989,” Roberts continues. “Throughout your career, you have consistently advocated positions on behalf of the United States in an exemplary manner. On behalf of the Court, I extend to you our appreciation for the many years of advocacy and dedicated service during your tenure in the Solicitor General’s Office and as an officer of this Court.”

“We look forward to hearing from you many more times,” the Chief Justice says.

Dreeben’s first argument was in a case called United States v. Halper, a complicated case related to Medicare fraud. The Court largely ruled against Dreeben and the government by ruling that a penalty under the False Claims Act, as applied to the individual in the case, violated the Double Jeopardy Clause (though it remanded the case to a lower court so the government could address another issue).

Dreeben’s adversary in that first argument was a lawyer who defended the judgment below at the invitation of the Court. His name was John G. Roberts, Jr.

Recommended Citation: Mark Walsh, A “view” from the Courtroom: Official actions and reactions, SCOTUSblog (Apr. 27, 2016, 2:59 PM),