To Have the Quid But Not the Quo

As you may know, the U.S. Supreme Court ended its term this year by reversing the bribery conviction of Virginia’s former governor, Bob McDonnell.

Suppose the governor of your state met a local businessman while campaigning for office, and the two cultivated a relationship.

What would it take for your governor to be guilty of corruption?

In Mr. McDonnell’s case, the businessman was the chief executive of a Virginia company that sold a nutritional supplement, and he wanted the federal Food and Drug Administration to approve the supplement as an anti-inflammatory drug. But that required the company to obtain independent research studies supporting its health benefits.

To get there, the executive wanted the state’s universities to study the supplement, and he thought the governor could help with that, so he plied him with gifts and money. He loaned him $70,000, bought him a Rolex, lent him a Ferrari for a weekend, bought his wife $20,000 worth of designer clothes, and gave him $10,000 as a gift for his daughter’s wedding. Overall, it added up to $175,000.

In return, the governor set up a couple meetings for him, hosted a couple events for his company, and contacted other officials about the supplement.

For example, the governor arranged for the executive to meet the state’s health secretary, and he emailed the secretary articles about the company. He later set up a second meeting between the executive and one of the secretary’s aides. But neither the secretary nor his aide felt pressured to do anything more than have a meeting, and the secretary straightforwardly declined to help initiate the research studies.

Similarly, the governor hosted a couple events to which he invited both the executive and some researchers from the state universities. At one event, he asked the researchers for their thoughts on the supplement: whether there was any reason to explore its scientific validity, and whether it could be good for jobs and the economy. But when the executive asked him whether he’d support funding for the research, he demurred that he had limited decision-making power in that area. At another event, the governor made no mention of the company, the supplement, or the executive.

Was that enough?

To convict him, the government had to prove that he committed or agreed to commit an “official act” in exchange for the loans and gifts. It alleged that he did so by arranging meetings, hosting events, and contacting other officials to promote the supplement.

At trial, the court sided with the government, instructing the jury that “official acts” could include those that an official customarily performed, especially if they were “in furtherance of longer-term goals” or “in a series of steps to exercise influence or achieve an end.”

The governor, instead, had wanted to instruct the jury along the lines that merely arranging meetings, hosting events, or making calls were not official acts unless he intended to influence a specific decision that was actually pending before the government, like passing a law, issuing a license, awarding a contract, or implementing a regulation.

The Supreme Court agreed with him unanimously.

It may be a mouthful, but the Court defined “official act” as an action or decision on a concrete, focused question, matter, or proceeding that involves a formal exercise of governmental power that’s similar in nature to a civil lawsuit, legislative hearing, or administrative determination.

The trial court’s instructions, however, permitted the jury to convict the governor for nothing more than setting up meetings, hosting events, and making calls. These were the types of things he’d done a thousand times before to help other constituents or promote business in the state. But according to the record, he hadn’t exercised governmental power to actually initiate the research studies or pressure anyone to do so.

Because the jury may have convicted him for conduct that was not unlawful, the Court reversed and remanded the case for further proceedings.