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Bob McDonnell, Bribery, and "Official Acts" - Part II
Whether Bob McDonnell performed “official acts” in exchange for the extravagant gifts he received from Jonnie Williams has been a central issue in his corruption case. A few weeks back I wrote about how this is the wrong legal standard because the definition of “official acts” in the federal bribery statute does not apply to honest services fraud and extortion under color of official right, the crimes for which McDonnell was convicted. That post dealt primarily with the proper definition of bribery for those two crimes, and I promised to return to a more thorough discussion of “official acts.”
So what exactly is the story behind the detailed and somewhat convoluted definition of “official act” that became so central to McDonnell's case? It appears in the federal bribery and gratuities statute, 18 U.S.C. §201. Section 201(a)(3) defines an official act as:
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.
McDonnell's lawyers seized on this definition and made it the centerpiece of their defense. Whatever the Governor did, they argued, it did not constitute a "decision" or "action" on a "question, matter, cause, suit, proceeding or controversy," and so could not form the basis for a bribery conviction. This argument was possible because the federal definition of bribery involving such “official acts” is unusually narrow, creating potential loopholes. Virginia state law, for example, defines bribery as accepting a pecuniary benefit “to obtain or influence the recipient’s decision, opinion, recommendation, vote or other exercise of discretion as a public servant or party official.” VA Code §18.2-447(2). There is no requirement that the bribe relate to a specific “question, matter, cause, suit, proceeding or controversy” that may be “brought before” the public official – a payment to influence any official decision or exercise of discretion will suffice. Why does the federal statute contain this apparently narrower focus on “official acts?” The answer may have to do with the role that the definition of “official act” plays in the overall statutory scheme of 18 U.S.C. §201.
Bribery vs. Gratuities: Please and Thank You
Section 201 actually describes two distinct offenses: bribery and the far less serious crime of gratuities. Bribery, defined in §201(b), is punishable by up to fifteen years in prison. The key to bribery is influence, or a quid pro quo: in exchange for a thing of value, the public official agrees to act a certain way. The political system is corrupted because the official is acting not in the best interests of all but in order to benefit the person who paid him or her off. Gratuities, defined in §201(c), carry a maximum penalty of only two years. A gratuity is just what it sounds like: a payment or “tip” for services rendered. There is no requirement that the public official was influenced in any way. A gratuity may be a pure after-the-fact reward for an action already taken or for something the official has already committed to do. The official’s behavior is not being altered. A good shorthand way to remember the distinction: a bribe says “please,” while a gratuity says “thank you.” The definition of “official act” in §201 plays a role in defining both offenses, but is actually far more important to the crime of gratuities than it is to bribery. A gratuity under §201 always requires that the gift be linked to an “official act.” Bribery, on the other hand, is defined three different ways, only one of which involves “official acts.” A bribe may be a payment to influence a public official in the performance of an “official act,” OR to induce the public official to do something in violation of his/her official duty, OR to induce the public official to aid in committing a fraud against the United States.
United States v. Sun-Diamond Growers
The leading Supreme Court discussion of §201 is the 1999 case of United States v. Sun-Diamond Growers of California. Sun-Diamond, a large agricultural cooperative, was indicted for providing illegal gratuities to Mike Espy, the Secretary of Agriculture under President Clinton. The indictment charged that Sun-Diamond had given Espy gifts worth about $5,900, including tickets to the U.S. Open, luggage, and a crystal bowl. The indictment also alleged that, at the time of the gifts, there were several matters pending before Secretary Espy in which Sun-Diamond’s members had an interest, but it did not link any particular gift to any particular matter on Espy’s plate. The prosecution argued it was enough that Sun-Diamond had given Espy the gifts because of his official status. Espy was in a position to take future actions that would benefit Sun-Diamond. The gifts were an attempt to curry favor and generate good will and that, the prosecution argued, should be sufficient to make them gratuities. In a unanimous decision the Supreme Court disagreed. Noting that the gratuity statute requires a thing of value to be given “for or because of any official act,” the Court held this language means the prosecution must identify a particular “official act” to which the gratuity is linked. It was not enough to say simply that the gifts were to generate good will or because of a public official’s position. The Court noted that, were it to accept the government’s theory of a gratuity based simply on an official's status, it would lead to some odd results. For example, suppose the President received a sports jersey from a championship team visiting the White House. The President, simply by nature of his office, will always be in a position to take some future action that could in some way benefit college or professional sports. If the prosecution’s "status gratuity" theory were correct, giving the President a jersey would become an illegal gratuity punishable by two years in jail – an absurd outcome Congress could not have intended. In the discussion most relevant to the McDonnell case, the Court recognized some might argue that, even in the sports jersey example, the jersey was given “for or because of” the “official act” of receiving the team at the White House and thus the statute was still violated. The answer, the Court said, is that although receiving the team may be an official act in some sense, it is not an “official act” as defined in the statute because it does not involve any “decision” or “action” on a “question, matter or controversy” brought before the President. The U.S. Court of Appeals for the D.C. Circuit picked up on this theme in another important case on “official acts” in 2007, Valdes v. United States. Valdes, a D.C. police officer, agreed with a man he met at a nightclub to look up some vehicle license plate records in a police database in exchange for a few hundred dollars. Although originally charged with bribery, Valdes was ultimately convicted only for gratuities, for accepting money for the “official act” of looking up the records. The D.C. Circuit, relying heavily on Sun-Diamond, reversed Valdes’ convictions because looking up the records did not constitute an “official act.” Although Valdes was using police resources, there was no pending “matter” or “controversy” that he had to decide within the meaning of the statute. An “official act,” the court held, requires that there was some kind of question before the official, in his or her official capacity, which the official had to resolve. Officer Valdes was simply moonlighting, not performing "official acts" as defined.
The brief discussion of “official acts” in Sun-Diamond has spawned a lot of litigation, and formed the backbone of McDonnell’s defense. Sun-Diamond features prominently in the briefs in the McDonnell case. His lawyers have repeatedly argued that any actions McDonnell may have taken in exchange for the gifts he received, such as hosting a product launch event at the Governor’s mansion, were not “official acts” but were mere ceremonial or routine events, akin to the White House ceremony where the President receives the jersey. As I argued in my earlier post, I don’t think the “official acts” definition applies to the charges in the McDonnell case. But even if it did, the defense argument would be flawed. Although the focus on the statutory definition of “official act” may serve to avoid absurd results in gratuities cases, it does not play the same role when it comes to a bribery case such as that involving the former Governor. In a gratuities case, the focus is on the nature of the official action being rewarded: was this particular gift “for or because of” an exercise of discretion involving an identifiable decision or action on a matter, proceeding or controversy. Sun-Diamond and Valdes conclude that an “official act” as defined in the statute requires this kind of discretionary action, the public official’s resolving of a question before him or her. This avoids the criminalization of token gifts for routine or ceremonial actions. In a bribery case, by contrast, the focus is not so much on the nature of the act but on the question of influence, or quid pro quo. Of the three ways to violate the bribery statute, only one requires an “official act” -- but all three require the government to show that the public official was “influenced” or “induced” to act a certain way. Whatever the nature of the action taken, the key question is: was it taken in exchange for the thing of value that was given? Did the public official agree to sell the powers of his/her office? Take the sports team hypothetical from Sun-Diamond. In a gratuities case, the court focuses on the event itself, and concludes it is not an “official act” because hosting the team does not involve any kind of decision, resolution, or answering of a question by the President. In a bribery case, however, the focus shifts from the event itself to whether the public official has agreed to be influenced in connection with that event. For example, if the team’s coach offers to give the President $100,000 if he will host the team at the White House and the President accepts, there’s no question that’s a bribe. The key is not the nature of what the President is agreeing to do – it’s still the same White House recognition ceremony. The key is the fact that now he is selling his office, agreeing to be influenced in the exercise of his discretion in exchange for the money. Within the terminology of the “official act” definition, the President is making a “decision” on a “question” that has come before him in his official capacity – namely, “should I host this team at the White House?” – and has agreed to be influenced in deciding that question in exchange for the money. That’s a bribe. McDonnell is a bribery case; Sun-Diamond and Valdes were not. As the McDonnell judge has noted, the Court in Sun-Diamond did not purport to examine the full scope of the “official acts” definition for purposes of the crime of bribery. And even for gratuities cases, the discussion about the sports team at the White House was dicta not essential to the decision. McDonnell’s case is not about whether hosting a product launch luncheon or otherwise promoting Jonnie Williams’ product fits the precise definition of “official acts” in §201. All the talk about “official acts” is primarily smoke and mirrors. The jury, by its verdict, found that McDonnell agreed to be influenced in the exercise of his official powers in exchange for the gifts that he received. That’s the essence of bribery. And that’s why Bob McDonnell has a problem. Two important updates this week: News reports indicate that the Department of Justice will not compel New York Times reporter James Risen to reveal his source, although he may still be asked more limited questions. See my posts about Risen and the reporter's privilege here and here. Also, there are reports the probation department has recommended that Bob McDonnell be sentenced to a minimum of 121 months. See my discussion of the McDonnell sentencing and how that number may have been calculated here. Sign up to receive e-mail notifications of future posts by clicking on the "Follow" button on the upper right.