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Symposium: Federal prosecutors and the power to pick defendants

Pete Patterson and John Ohlendorf are attorneys at the Washington, D.C. law firm Cooper & Kirk, PLLC, which filed an amicus brief on behalf of the Republican Governors Public Policy Committee supporting Governor McDonnell. The views expressed here are their own.

The Supreme Court’s unanimous decision in McDonnell v. United States is a significant victory for the authority of the states to regulate the conduct of their own elected officials. It also is a significant defeat for the federal government’s efforts to transform federal bribery law into a comprehensive code of good government for local and state officials. By adopting a sensible interpretation of the reach of federal bribery law, the Court has done much to cabin the temptation for federal prosecutors in this politically charged context to pick defendants they think they should get, rather than cases that need to be prosecuted.

A variety of federal statutes have been interpreted to forbid “bribery,” defined as the receipt by a public official of “anything of value” in exchange for performing or agreeing to perform an “official act.” In many cases (as in this one), it is relatively easy for the government to prove that an official accepted something of value (which has been construed to include campaign contributions) and that an exchange or “quid pro quo” took place (which may be inferred). The only element with any remaining bite is thus often the requirement that the official perform or agree to perform an “official act,” defined by federal law to include:

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.

The government prosecuted former Virginia governor Robert McDonnell under the extraordinary theory that essentially any state official who arranges a meeting for, or contacts other public officials on behalf of, one of his constituents has committed an “official act,” making him subject to federal bribery prosecution so long as the other two (largely toothless) elements are met. That view of federal law prevailed in both the district court and the Fourth Circuit; it did not get a single vote in the Supreme Court. Instead, the Court adopted an interpretation of the “official act” requirement that limited the reach of federal bribery law in three ways: (1) the official act must concern an issue that is specific and concrete (“the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete”), (2) that issue must “involve[ ] a formal exercise of governmental power that is similar in nature to a lawsuit, administrative determination, or hearing,” and (3) an official must render a “decision” or take “action” on such an issue or use his position to exert pressure on or advise another official to take such an action.

The opinion rejecting the government’s boundless interpretation of bribery law was penned by Chief Justice John Roberts, and it exemplifies three of the qualities for which the Chief Justice has become known during his tenure. First and perhaps most obviously, the opinion is unanimous. The Chief has famously labored to produce unanimity, an effort that paid off most notably two Terms ago when the Court produced the highest percentage of unanimous opinions in over half a century. The October Term 2015, by contrast, has been marked by a series of bitterly divided decisions that have led some to characterize the Court as “dysfunctional” and the Justices as “surly and listless.” In the last opinion of the Term, however, the Chief Justice forged a unanimous decision – rejecting an interpretation of the “official act” requirement that the judges below had unanimously embraced. Nor was this the type of “faux unanimity” for which the Court’s opinions are sometimes faulted – —unanimity purchased by a narrow decision that in fact decides very little. No, yesterday’s opinion imposes real limits on the reach of federal bribery law.

Second, the opinion features one of the Chief’s signature moves: interpreting statutory language narrowly to avoid potential constitutional concerns. Other notable examples in this style include NAMUDNO v. Holder, Bond v. United States, and, of course, NFIB v. Sebelius. And here, the McDonnell opinion shows this feature of Chief Justice Roberts’s jurisprudence in its best light. As discussed below, the due process and federalism concerns with the government’s reading were acute. The narrow interpretation of the bribery statute’s “official act” requirement is consistent with – indeed, it directly follows from – that statute’s text. For example, Congress included in its list of “official acts” such things as “causes,” “suits,” and “proceedings” – a strong indication that the “questions” and “matters” also included within that definition are questions and matters that, like a lawsuit, are specific and concrete and involve the formal exercise of governmental power.

Third, the Chief Justice’s opinion in McDonnell reflects his often-expressed reluctance to hand boundless discretion to federal prosecutors. In Bond, for example, the Chief read the Chemical Weapons Convention Implementation Act narrowly to deny federal prosecutors the discretion “to reach into the kitchen cupboard” and “treat a local assault with a chemical irritant as the deployment of a chemical weapon,” reasoning that such a result would work “a serious reallocation of criminal law enforcement authority between the Federal Government and the States.” And during the oral argument in Yates v. United States, Chief Justice Roberts critiqued the federal government’s application of a statute designed to prevent the destruction of financial records to a local fisherman who had discarded an undersized fish, noting the “extraordinary leverage that the broadest interpretation of this statute would give Federal prosecutors.”

As Justice Jackson memorably put the point, prosecutorial discretion becomes a threat to liberty when its scope is so broad that a prosecutor can “pick people that he thinks he should get, rather than pick cases that need to be prosecuted,” freeing him to go after individuals whose only crime is “being attached to the wrong political views.” So too here, the Chief Justice notes, the government’s interpretation of “official act” would “cast a pall of potential prosecution” over quite ordinary political participation. And “we cannot construe a criminal statute on the assumption that the Government will use it responsibly.”

These due-process concerns raised by the government’s view are sharpened by the related federalism concerns. It is a cornerstone of the Court’s federalism jurisprudence that each state has the inherent authority to “define[ ] itself as a sovereign” by determining “the character of those who exercise government authority.” One source of that definition is the regulation a state imposes on the conduct of its public officials – the balance it strikes between encouraging its officials to be responsive to their constituents’ concerns and preventing individuals or interest groups from corrupting the democratic process by purchasing special favors. As Chief Justice Roberts noted, the government’s interpretation of “official act” would have displaced that core state authority – without any clear statutory warrant – by turning federal bribery law into a comprehensive code of “good government for local and state officials.”

In this context, the power of a prosecutor to pick his defendants must be kept under an even closer watch. For while a state or local prosecutor is generally at least indirectly accountable to the people of the state, when a federal prosecutor adopts a strained interpretation of a federal statute to trump the state’s judgment about how much leeway its own officials should have, even this indirect accountability is wholly lacking.

Finally, because the Court’s decision leaves the states with primary authority to regulate the conduct of their own officials, should the people of any given state conclude that conduct like that at issue in this case ought to be punished, they have the power to make it illegal as a matter of state law. It is often remarked that bad facts make bad law. And as Chief Justice Roberts notes, “[t]here is no doubt” that Governor McDonnell’s acceptance of $175,000 worth of “Ferraris, Rolexes, and ball gowns” “is distasteful.” But the metes and bounds of federal bribery law must be set not based on these bad facts but instead with an eye towards “the broader legal implications of the Government’s boundless interpretation.” The government would have used federal bribery law to trump each state’s view of “the permissible scope of interactions between state officials and their constituents” – and to grant to federal prosecutors the unbridled authority to pick their defendants based on whim, caprice, or political disfavor. The Court’s decision instead frees each state to regulate conduct like Governor McDonnell’s for itself, without upsetting the different lines other states may draw between appropriate access and illegal influence.

Recommended Citation: Pete Patterson, Symposium: Federal prosecutors and the power to pick defendants, SCOTUSblog (Jun. 28, 2016, 10:37 AM),