Tuesday Judge James Spencer ruled in favor of the prosecution and gave a definition of “official action” that was the version put forward by the government. The proper definition of the term is a deceptively tricky question, but one that is at the heart of the case. If a bribe is to be seen as requiring a quid pro quo, the bribe itself is the quid, and the “official action” is the quo. The defense has argued that Bob McDonnell didn’t really DO anything for all of Jonnie Williams’ loans and gifts and golf games and $150 shots of cognac. The only quos that the prosecution proved were:
- Bob McDonnell directed subordinates to attend meetings with Williams.
- Bob attended an Anatabloc product launch at the governor’s mansion in August, 2011.
- Bob let Williams get 25 Star Scientific employees onto the invitation list for a reception for health-care leaders at the governor’s mansion in February, 2012.
- Six minutes after e-mailing Williams about a $50,000 loan, Bob e-mailed a subordinate asking to discuss the scientific studies Williams wanted.
Everyone agrees that Bob McDonnell did not direct the spending of any government money on behalf of Star Scientific, and he didn’t try to order anyone to do the study of Anatabloc.
The defense had sought an instruction that basically said the only “official action” that can lead to prosecution would be something that was at the core of what the official does:
For example, merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, “official acts,” even if they are settled practices of the official. A government official’s decisions on who to invite to lunch, whether to attend an event, or whether to attend a meeting or respond to a phone call are not decisions on matters pending before the government. That is because mere ingratiation and access are not corruption. Nor is an official’s use of his official position to promote a purely private venture. The questions you must decide are both whether the charged conduct constitutes a “settled practice” and whether that conduct was intended to or did in fact influence a specific official decision the government actually makes—such as awarding a contract, hiring a government employee, issuing a license, passing a law, or implementing a regulation.
The government draft instruction, on the other hand, was much broader:
The term “official action” means 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 public official’s official capacity. “Official action” as I just defined it includes those actions that have been clearly established by settled practice as part of a public official’s position, even if the action was not taken pursuant to responsibilities explicitly assigned by law. In other words, official actions may include acts that a public official customarily performs, even if those actions are not described in any law, rule, or job description. And a public official need not have actual or final authority over the end result sought by a bribe payor so long as the alleged bribe payor reasonably believed the public official had influence, power, or authority over a means to the end sought by the bribe payor. In addition, “official action” can include actions taken in furtherance of longer-term goals, and an official action is no less official because it is one in a series of steps to exercise influence or achieve an end.
What the difference comes down to is this — under the defense version, the defense has a strong argument that Bob McDonnell did nothing “official” for Jonnie Williams and Star Scientific, because he did not award a contract, hire an employee, issue a license, pass a law, etc. But under the prosecution version, where an “official action” may include “acts that a public official customarily performs, even if those actions are not described in any law, rule, or job description,” even something as minimal as asking an aide to report to him on what was happening with the Anatabloc studies could be seen as an “official action” because it is the sort of thing that governors customarily do.
Now for a little legal digression.
The most recent United States Supreme Court case on a related point is United States v. Sun-Diamond Growers of Cal., 526 U.S. 398 (1999). Sun-Diamond was fined $1.5 million for giving $5,900 in gifts to Clinton Agriculture Secretary Mike Espy — tickets to the Super Bowl, tickets to the U.S. Tennis Open, etc. The indictments did not charge that Espy specifically DID anything after receiving the gifts, so it was not prosecuted as a bribery or “honest services fraud” case. Granted, there were plenty of things that a Secretary of Agriculture does that could benefit Sun-Diamond, but there was no link between the gifts and whatever those official actions might be.
The fine was reversed on appeal, and the Supreme Court held that the illegal gratuities statute requires a link between a gift and an official act. Justice Antonin Scalia’s opinion, for a unanimous court, said that the prosecutor’s interpretation of the law was so broad that even a high school principal could be in legal trouble for giving a souvenir baseball cap to a visiting Secretary of Education. The language that the defense particularly liked was where Scalia distinguished between actions that are assuredly “official acts” in some sense — such as “receiving  sports teams at the White House, visiting [a] high school, and speaking to  farmers about USDA policy” — and the narrower category of “official acts” that fall within the bribery laws. Surely, giving President Obama a Seattle Seahawks jersey when he welcomed the Seahawks to the White House after they won the Super Bowl last year would not constitute a bribe.
On the other hand, the Fourth Circuit’s most recent discussion of “official actions” came in United States v. Jefferson, 674 F.3d 332 (4th Cir. 2012). This was the celebrated case of the Congressman with $90,000 of marked cash in his freezer. A company called iGate had supposedly paid $400,000 in bribes to a company maintained in the name of Jefferson’s wife and children; in return, Jefferson would help iGate’s business by persuading the U.S. Army to test iGate’s broadband two-way technology and other iGate products, and by trying to influence the U.S. Export-Import Bank and high-ranking officials in Nigeria, Ghana, and Cameroon to provide financing for iGate business deals in those countries. iGate went to the FBI, and on July 30, 2005, Jefferson was videotaped by the FBI receiving $100,000 worth of $100 bills in a briefcase at the Ritz-Carlton hotel in Arlington, Virginia. The money was supposedly to give to the Nigerian Vice President, to make sure that Nigeria would award contracts to iGate. A few days later, FBI agents raided Jefferson’s home and found $90,000 of the marked cash in Jefferson’s freezer.
Jefferson had been convicted and his convictions were affirmed by the Fourth Circuit — Judge Spencer’s immediate bosses, so to speak. The Fourth Circuit approved jury instructions that said that an “act may be official even if it was not taken pursuant to responsibilities explicitly assigned by law. Rather official acts include those activities that have been clearly established by settled practice as part [of] a public official’s position.” The Fourth Circuit had said that this instruction “simply explained to the jury that an official act need not be prescribed by statute, but rather may include acts that a congressman customarily performs, even if the act falls outside the formal legislative process.”
It would be tempting just to say that the difference between Sun-Diamond and Jefferson is that in Sun-Diamond, there was no connection alleged between the tickets and any action by Espy. And that is certainly a difference, but it is not the difference that matters to this discussion. The two cases discussed the same term — “official action” — in very different ways. The Fourth Circuit, in Jefferson, went back to a 1914 Supreme Court case:
The official act issue requires our assessment of the viability and applicability of the Supreme Court’s century-old decision in United States v. Birdsall, 233 U.S. 223, 34 S. Ct. 512, 58 L. Ed. 930 (1914). There, the Court recognized, under a predecessor bribery statute, that for a public officer’s action to be “official,” it was not necessary that it should be prescribed by statute; it was sufficient that it was governed by a lawful requirement of the department under whose authority the officer was acting. Nor was it necessary that the requirement should be prescribed by a written rule or regulation. It might also be found in an established usage which constituted the common law of the department and fixed the duties of those engaged in its activities. In numerous instances, duties not completely defined by written rules are clearly established by settled practice, and action taken in the course of their performance must be regarded as within the provisions of the abovementioned statutes against bribery. Id. at 230-31 (emphasis added) (citations omitted)
United States v. Jefferson, 674 F.3d 332, 351-352 (4th Cir. Va. 2012). In Jefferson, what was being “bought” was the Congressman’s supposed power to call up friends overseas and friends in the government and to bribe them. On the facts, this is an awful case for the defense, and it wound up making awful caselaw for other defendants to have to deal with.
In Sun-Diamond, though, there was no bribe at the end of the trail. All that was being “bought” with the gifts was access — being able to sit next to Secretary Espy, to show him a good time, to make sure that the next time that the President of Sun-Diamond called the Agriculture Department, Espy would take his call. And as the Court has told us in Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 360 (2010), “Ingratiation and access . . . are not corruption.”
The defense wants Judge Spencer, and if necessary the Fourth Circuit and the Supreme Court, to see Bob McDonnell like the courts saw Mike Espy. The only thing being bought here was access. The government wants the courts to see Bob McDonnell as William Jefferson, with a lot of money changing hands. This comparison is not one that the jury hears about, but if there is a conviction and an appeal, you can bet your bottom dollar that that comparison will be at the heart of the briefs.