So, that happened. Former Virginia Gov. Bob McDonnell was convicted by a federal jury in September 2014, after he was caught participating in one of the most cut-and-dry examples of cash-for-favors found in the political corruption textbook. Now, however, McDonnell’s appeals have taken his case to the Supreme Court, where -- believe it or not -- a majority of justices seem predisposed to overturning his conviction, and decimating anti-corruption laws. Joining the podcast this week to discuss this case is Zephyr Teachout, candidate for Congress in New York's 19th District and author of "Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United."
About a year and a half ago, McDonnell and his wife were found guilty of corruption charges stemming from their involvement with Jonnie Williams, the former CEO of Star Scientific, a dietary supplement company. A lengthy investigation proved that McDonnell and Williams essentially engaged in a straight-up exchange of money for potentially lucrative political favors.
Dana Liebelson and Timothy Murphy explain over at Mother Jones that, among other things, the McDonnells, using Williams' largesse, took home a $6,500 Rolex watch, a $15,000 shopping jaunt at Bergdorf Goodman, a $10,000 engagement gift for one of their daughters, and $15,000 to cover the catering charges for another daughter's wedding.
In return, Williams got the McDonnells to become dedicated shills for Star Scientific. Over the course of this relationship, McDonnell hosted events for Star Scientific at the governor’s mansion, helped ensure that Williams would have access to influential policymakers, and used his office to pressure state health officials to meet with Williams -- all in the support of earning Star Scientific's diet products credibility and sales. Recognizing that McDonnell had the juice to make all of this happen, Williams reckoned that it was cheaper for him to simply buy the governor off than it would be to take the more costly and arduous route of bringing his products to market.
In short: Jonnie had the quid, McDonnell was the pro, and lo, there was quo, to and fro.
As The Huffington Post’s Cristian Farias reported, McDonnell may well be on his way to a great escape, thanks to a majority of Supreme Court justices who seem, alternatively, amenable to McDonnell’s point of view, and troubled that too many prosecutors might start taking up corruption cases:
“My problem is the criminal law as the weapon to cure” dishonest behavior, [Justice Stephen] Breyer said. He warned that stretching the law’s reach will mean that “political figures will not know what they’re supposed to do and what they’re not supposed to do.”
The Constitution, in principle, guards against laws that are too vague. But Breyer also worried about another fundamental constitutional problem: an unbound Department of Justice as “the ultimate arbiter of how public officials are behaving in the United States — state, local, and national.”
“Now, suddenly, to give that kind of power to a criminal prosecutor, who is virtually uncontrollable, is dangerous in the separation of powers,” he said.
But as Teachout writes in her book, the Supreme Court has already spent several decades unwinding centuries of case law governing political corruption -- to the point that right now, it’s been essentially reduced, conceptually, to little more than quid pro quo bribery of the sort in which McDonnell engaged. So, if the justices draw an even narrower standard in this case, they may permanently cripple any effort to curb pay-to-play.
“After 200 years of a fair amount of consistency,” Teachout explains, “where courts understood that corruption was a central threat to democracy -- perhaps the central threat to democracy ... the Supreme Court started questioning what corruption was and whether something counted as corruption unless there was an explicit exchange -- especially in the campaign finance context.”
This resulted in what she described as a sort of legal carve-out, for the benefit of political donors and their beneficiaries, so that they weren’t repeatedly taken to court for making political donations.
But Teachout said this isn't what the McDonnell case is about. “This ... is not a campaign finance case. Jonnie Williams was not giving a donation to a campaign. He was giving a Rolex to put on McDonnell’s arm. He was giving a shopping spree for McDonnell’s family. This is old-school, classic corruption. Classic bribery.
“What is really dangerous about this McDonnell case,” Teachout continued, “is that the court looks poised to do something similar in the bribery realm, and narrow the definition there. ... That’s the direction we are moving in.”
And a majority of Supreme Court justices seem happy to nudge things along. For example, as Roll Call’s Todd Ruger reported, Chief Justice John Roberts made explicit mention of an amicus brief filed on McDonnell’s behalf from an array of former White House lawyers:
Roberts brought up what he called “an extraordinary document” in the case, an amicus brief from former White House counsels to Presidents Barack Obama, George W. Bush, Bill Clinton, George H.W. Bush and Ronald Reagan.
“And they say, quoting their brief, that ‘if this decision is upheld, it will cripple the ability of elected officials to fulfill their role in our representative democracy,'” Roberts said. “Now, I think it’s extraordinary that those people agree on anything. But to agree on something as sensitive as this and to be willing to put their names on something that says this cannot be prosecuted conduct, I think is extraordinary.”
Think about to what they are agreeing, though: That the ordinary business of Washington can’t get done without rich dudes handing out Rolex watches in exchange for access, favors and connections.
“I thought the justices were kind of confused during the oral argument,” Teachout said. “They were on the hunt for something that could provide a clear limiting principle.”
Indeed, as NPR’s Nina Totenberg reported, the justices -- with the notable exceptions of Sonia Sotomayor and Ruth Bader Ginsburg -- seemed perplexed by this, and aggressively questioned Deputy Solicitor General Michael Dreeben, assigned to argue this case for the government.
Totenberg reported one exchange during oral argument that is a fairly good example of the justices’ overall bewilderment. As she relates, after Chief Justice Roberts suggested that the existing anti-corruption laws are too broad, and unconstitutional, Dreeben was apoplectic: "It would be absolutely stunning if this court said that bribery and corruption laws, which have been on the books since the beginning of this nation, have been consistently enacted by Congress --"
It was there that Justice Anthony Kennedy interrupted: "Absolutely stunning to say that the government has given us no workable standard?"
Dreeben responded: "We've given you a workable standard, based on this court's decisions dating back to 1914."
Dreeben is correct, Teachout said, noting that there has always been a serious limiting principle to guide courts in this regard: A jury must find that there was intent to have a quid pro quo exchange.
What’s more, according to Teachout, is that “All of our history of bribery and extortion law has said official acts can include things like setting up meetings ... doing things within your sphere of public duty.” There doesn’t have to be a bill signed into law at the end of the deal for it to be an “official act.”
“This is overturning 700 years of law, basically,” she said.
Elsewhere on this week’s podcast: This week, New York magazine's Andrew Sullivan penned an alarming missive to America, contending that our presumed-to-be stable democracy is ripe for an authoritarian takeover. Sullivan joins us to talk about it. Additionally, we continue our coverage of the Flint, Michigan, lead water crisis by talking to Rep. Dan Kildee (D-Mich.) about how Flint could figure in future policy and political discussions.
“So, That Happened” is hosted by Jason Linkins, Zach Carter and Arthur Delaney. Joining them this week are New York magazine's Andrew Sullivan, author and U.S. House candidate Zephyr Teachout, and Michigan Rep. Dan Kildee, as well as Huffington Post reporters Zach Carter, Arthur Delaney, and Christine Conetta.
This podcast was produced, edited and engineered by Christine Conetta.