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How to Get Away with Bribing a Politician, According to the Supreme Court

It helps if your bribery doesn't actually get you anything in return.
June 28, 2016, 8:00pm
Former Virginia Governor Bob McDonnell speaks to members of the media in Richmond, Virginia. Photo by Alex Wong/Getty Images

The United States Supreme Court issued a unanimous decision on Monday in the case of McDonnell v United States, that basically cleared former Virginia Governor Bob McDonnell of bribery charges. Prosecutors had alleged that while he was in office, McDonnell took gifts from a businessman named Jonnie R. Williams, who made a nutritional supplement McDonnell enjoyed. Williams hoped McDonnell, and the Commonwealth of Virginia, would help put his supplement on track for major scientific research. The governor then arranged meetings between Williams and members of the Virginia state government.


Said gifts added up to $175,000, and included parties, vacations, clothes, iPhones, golf clubs, a custom-engraved Rolex, and the free use of the supplement-maker's lake house, boat, and Ferrari, according to court filings.

The charges sounded like they were cooked up in a Shonda Rhimes TV writers room. Nonetheless, on Tuesday, McDonnell's conviction was just vacated by the highest court in the land. And not because there wasn't sufficient evidence—according to Chief Justice John Roberts, who wrote the court's opinion, the prosecution used an overly broad "interpretation of the federal bribery statute."

So to find out whether the Supreme Court is really pro-bribery, and to find out whether this you too can benefit from giving luxury items to politicians, I got in touch with Richard Briffault, a professor of legislation at Columbia Law School who was a member of New York State's Moreland Commission on Public Corruption. Briffault said Americans shouldn't be too nervous about the implications of this ruling, but that if you want to bribe an elected official, it helps if you don't get anything in return.

VICE: Let's say someone's a real stickler for ethics in politics. How bummed should they be about today's decision?
Richard Briffault: It's not as bad as it could have been from the perspective of public integrity. When the case was argued, the court seemed very hostile to the government's position, and very concerned that a very broad definition of "official act"—which was at issue in this case—could lead to prosecutions for all sorts of not-very-troubling activity.


Is the Supreme Court in any way on the fence about the fact that Williams at least tried to bribe the governor?
There's no denying that he showered the governor and the governor's wife with gifts. The court accepts—and was not happy about—that.

If I were a businessman like Williams, and I gave my governor $175,000 in gifts to have meetings with me, wouldn't that be corruption?
Meetings could be evidence of a corrupt deal, but meetings alone are not enough. And based on the jury instructions, the jury might have treated the meetings as enough.

If I'm on trial for corruption, how does today's ruling affect the prosecution in my trial?
It definitely forces them [prosecutors] to be a little sharper in their presentation, and give the jury instructions that give the possibility that [an action taken in response to gift-giving] was not an "official act." I don't know if the government's going to retry this case, but there's certainly enough there to support a retrial.

Still, if it makes these prosecutions harder, you know what that sounds like, right?
That it's a huge win for corruption?

I don't think it's that bad, but it should be a caution. It basically takes seriously the idea that in order to bring a federal prosecution against a state or local official for corruption, it has to be for something official. And not everything an official does is an "official act."

Could you me an example of something a governor could do in response to gift-giving that wouldn't be an "official act"?
Let's say the governor has kids, and the governor has a birthday party, and he decides to invite a kid to the kids' birthday party because of gifts that the parents have given [the governor]. It's not clear that a birthday party at the governor's mansion is an official act.


Are you really saying that's not corruption?
It may still be a bad idea. It may be unethical. It may be a misuse of public resources to use the executive mansion to extort gifts from people, but it's not clear that it's an "official act."

From a civil rights standpoint, is there any danger in clamping down on elected officials, and broadening the definition of "official act"?
It's not clear. A lot of the briefs tried to argue that there was a First Amendment piece to this. But the Supreme Court doesn't mention the First Amendment. The Supreme Court really mentions two things. One is only in one paragraph: a kind of federalism concern—that this is the feds federalizing state and local corruption, as opposed to leaving it to the state to do it. The other is a kind of vagueness concern. If anything can be an official act, this gives prosecutors a huge amount of discretion to go after things.

So for now, do prosecutors will always have to find a paper trail and an unambiguous quid-pro-quo to get a conviction?
It could be done with winks and nods, but you've got to persuade the jury that the winks and nods add up to an agreement. It doesn't have to be a paper trail. The jury has to be asked: Do you find these events taken together to show that the governor took this stuff on the understanding that he was gonna get the state to do something for the guy who gave him the Rolex?

And did he?
Mr. Williams spent $175,000 on the governor and his wife, and didn't get a penny's worth back. That's not enough to acquit the governor; if [Williams] failed, that still would be enough to support a conviction. But it does support the governor's argument which is, I didn't promise him anything. He was just being nice. All I promised is that I would listen. But I didn't do anything more. And listening may be sleazy, but it's not an official act.

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