One
of the most high-profile public corruption cases in the United States
in the last couple of years (and alas, there’s some competition for that
honor) is that of former Virginia Governor Bob McDonnell—a case that
both Rick and Jordan have
written insightfully about before. Governor McDonnell was convicted of
violating federal anti-corruption laws by accepting cash, loans, and
lavish gifts from a local businessman, Jonnie Williams, in exchange for
helping Mr. Williams secure research studies of his dietary supplement
product at state institutions. Governor McDonnell’s assisted Mr.
Williams' efforts by arranging meetings, recommending that other state
officials meet with Mr. Williams about his product (using language
indicating that Governor McDonnell supported and encouraged use of the
product), and encouraging state officials to arrange for the research
studies sought by Mr. Williams.
Governor
McDonnell appealed his conviction, and the U.S. Court of Appeals for
the Fourth Circuit heard oral arguments in his appeal last week. (I
can’t find a written transcript online yet, but you can listen to an
audio recording of the argument here.)
The governor’s primary argument on appeal is that he did not violate
the relevant federal statutes because he did not perform any “official
acts” on behalf of Mr. Williams. Interestingly, Governor McDonnell’s
appeal has attracted support from a broad range of criminal law experts,
including my Harvard Law School colleagues Professor (and retired
Judge) Nancy Gertner and Professor Charles Ogletree. Judge Gertner and Professor Ogletree, along with Virginia Law School Professor John Jeffries, filed an amicus brief
contending, in essence: (1) the things that Mr. Williams got from
Governor McDonnell were not specific government decisions, but rather
“access and ingratiation,” which do not count as “official acts,” and
which the Supreme Court has said are not corrupt; (2) the broader
definition of “official acts” accepted by the trial court (and reflected
in its jury instructions) would render the anti-bribery statutes at
issue so broad and vague as to violate constitutional Due Process
rights.
Judge
Gertner, Professor Ogletree, and Professor Jeffries are among the most
distinguished criminal law experts in the United States. They have
decades of experience practicing and writing about these issues at the
highest levels, whereas I’m a comparative novice in this area, with zero
practice experience. If they think one thing, and I think another, it
would probably be a smart bet that they’re right and I’m wrong. All that
said, I disagree quite strongly with the analysis in their brief.
A
blog post is not the place to get into a detailed discussion of the
nuances of the law, and this issue may seem rather parochial, especially
to our non-American readers. But I actually think that the main
problems with the Gertner-Ogletree-Jeffries (GOJ) brief stem from an
important conceptual confusion that has implications well beyond this
case, and perhaps outside of the U.S. as well. So with full recognition
that I’m risking personal embarassment in advancing what might turn out
to be a misguided critique, let me explain why I found the GOJ brief
(and Governor McDonnell’s lawyer’s arguments along the same lines)
unconvincing: Read more of this post
http://globalanticorruptionblog.com/2015/05/22/why-bob-mcdonnells-bribery-conviction-should-be-affirmed/#more-3756 |
Friday, May 22, 2015
Why Bob McDonnell’s Bribery Conviction Should Be Affirmed
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