In a decision that proved unanimity is no guarantee of wisdom, the Supreme Court last year overturned the corruption conviction of former Virginia Gov. Bob McDonnell.
McDonnell had done a series of favors — in effect, throwing the doors of state government open wide — for a businessman who had lavished more than $175,000 in loans, gifts and other benefits on the Republican governor and his family; the businessman hoped that the state would promote a nutritional supplement made by his company. But the court said prosecutors hadn’t proved that McDonnell engaged in “official acts” of the kind covered by federal bribery laws.
The McDonnell ruling has proved a gift that keeps on giving for public officials accused of corruption. So far it has led to the reversal of the convictions of two leaders of the New York state Legislature (although they will be tried again) and the reversal of most of the convictions of a former member of Congress from Louisiana who became famous when the FBI found $90,000 in his freezer.
This week Sen. Bob Menendez hoped to become the latest beneficiary of the McDonnell decision. The New Jersey Democrat’s lawyers cited the ruling in asking a federal judge to dismiss charges that Menendez did favors for Salomon Melgen, a Florida eye surgeon, in exchange for campaign contributions and gifts including plane rides, a stay in a five-star Paris hotel and visits to a resort in the Dominican Republic.
For now, the judge has denied the defense motion, but the McDonnell decision could still benefit Menendez with the jury and, if he is convicted, in an appeal. And who knows how many future prosecutions will be frustrated — or not initiated in the first place — because of last year’s misguided Supreme Court decision?
In his majority opinion in McDonnell vs. United States, Chief Justice John G. Roberts Jr. acknowledged that “this case is distasteful.” That’s an understatement. McDonnell and his family had accepted lavish gifts from a businessman named Jonnie Williams Sr., including a $6,500 Rolex watch for McDonnell and $15,000 in catering expenses for his daughter’s wedding. For his part, McDonnell sought to arrange meetings for Williams with state officials and hosted a luncheon event for Williams’ company at his official mansion — essentially a state-sponsored infomercial. The governor also talked up the advantages of Williams’ product at a meeting called to discuss the state’s health plan for its employees.
Common sense would suggest that those actions were “official acts” by the governor. But the court said: Not necessarily. “Setting up a meeting, hosting an event, or calling an official (or agreeing to do so) merely to talk about a research study or to gather additional information, however, does not qualify as a decision or action,” Roberts wrote.
Roberts said that McDonnell’s conviction had to be overturned, and the Justice Department eventually decided not to try McDonnell again.
Fortunately, the Supreme Court does not have to be the last word on this subject. Congress could revise federal bribery statutes to clarify that an “official act” is any action that a public official does by virtue of his office — including the convening of meetings, contacts with bureaucrats and the making of introductions — and that engaging in such acts on behalf of individuals who ply you with cash or gifts is a crime.
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