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Symposium: Federal criminal statutes are not blank checks for prosecutors

Jeffrey T. Green serves as National Co-Chair of the Amicus Committee of the National Association of Criminal Defense Lawyers (NACDL).

Ivan J. Dominguez is the Director of Public Affairs & Communications at NACDL.

In McDonnell v. United States, the Supreme Court unambiguously rejected the government’s effort to convert into federal crimes conduct not prohibited by the federal bribery and corruption statutes under which the charges were brought. Nevertheless, many in the media immediately led with headlines along the lines of “Supreme Court makes prosecuting corruption more difficult,” as though the decision of the Court yesterday was something other than a unanimous opinion vacating Governor Bob McDonnell’s conviction on federal bribery and corruption charges. The headline should have been: “Supreme Court rejects novel prosecution theories that convert traditional constituent services into federal crimes.”

The government had alleged that “official acts” for the purposes of these statutes included merely arranging meetings, making introductions, and hosting events in connection with the business interests of a constituent, Virginia businessman Jonnie Williams, from whom the McDonnells accepted loans, gifts, and other benefits. The Court disagreed, holding that “[t]aking into account the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we reject the Government’s reading of §201(a)(3) and adopt a more bounded interpretation of ‘official act.’ Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”

Indeed, Chief Justice John Roberts’s opinion makes crystal clear the opinion’s focus on the issue of prosecutorial overreach, explaining that the Court’s concern is “with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute.” Indeed, the Court observed, “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 continued, explaining:

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. 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.

All of the foregoing speaks directly to the point that words matter and that the words used by Congress in federal criminal laws are not blank checks for prosecutors to rewrite and redefine in order to threaten and secure prosecutions – sometimes for their own political ends. Indeed, this is not the first time the Supreme Court has had to forcefully remind federal prosecutors of this fact in recent years.

In its June 2, 2014, unanimous decision in Bond v. United States, also an opinion by Roberts, the Court rejected the government’s effort to use the Convention on Chemical Weapons to prosecute a simple assault, stating that “the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.”

The Supreme Court once again took federal prosecutors to task in its February 25, 2015 opinion in Yates v. United States. In that case, the majority rejected the government’s use of a post-Enron anti-shredding law to prosecute a fisherman for missing fish. While in McDonnell’s case, the operative statutory language prosecutors sought to expand was “official act,” in Yates it was “tangible object.” In Yates, Justice Ruth Bader Ginsburg wrote, “we resist reading §1519 expansively to create a coverall spoliation of evidence statute, advisable as such a measure might be. Leaving that important decision to Congress, we hold that ‘tangible object’ within 1519’s compass is one used to record or preserve information.”

Yesterday’s decision therefore stands as yet another forceful opinion from the Court rejecting so-called “beach-head” prosecutions that flow from overly expansive and clever readings of federal laws. These expansive readings require a strong check – and thus far the Supreme Court has been willing to provide that check – so long as such cases are backed by dedicated attorneys who are willing and able to go that far. As the Chief Justice wrote here:

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.” . . . A more limited interpretation of the term “official act” leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.

We are not “through the looking glass” (at least not yet) to where words may mean just what one says they mean – neither more nor less. And when the full force of a federal criminal prosecution is brought to bear, the emphasis in a free society must be on limiting principles that provide notice to the public of what constitutes criminal conduct. Criminal prosecutions are not a sandbox in which to test novel spins on statutory language. Lives and careers, not to mention the rule of law, are at stake.

Recommended Citation: Ivan Dominguez, Symposium: Federal criminal statutes are not blank checks for prosecutors, SCOTUSblog (Jun. 28, 2016, 11:44 AM),