A Writer Sees Leniency in the Supreme Court’s Approach to Public Corruption
"A Georgetown law professor argues that five rulings by the justices in recent years have allowed behavior that is “sketchy as hell” and meant to make the judiciary look good by contrast.
Eight years ago, before revelations about luxury travel and gifts accepted by Justices Clarence Thomas and Samuel A. Alito Jr., the Supreme Court considered the case of a politician who had been prosecuted for public corruption after receiving similar benefits. The court threw out his conviction. In the years since, the court has overturned four otherconvictions in public corruption cases.
In all five of the decisions, the court’s message has been that “federal law must be interpreted so as not to cover behavior that looks, to any reasonable observer, sketchy as hell,” Josh Chafetz, a law professor at Georgetown, wrote in a new article, “Corruption and the Supreme Court,” which will be published next year in The Yale Journal of Law and the Humanities.
Taken together, he added, the decisions make a basic point and a more subtle one. The basic one, he said, is that “the justices keep letting crooked politicians off the hook.”
The more subtle one is that they “went out of their way to insist that nonjudicial politics is pervasively shot through with tawdriness.” They did so, at least in part, he wrote, to try to make the judiciary look good by contrast.
To be sure, four of the decisions were unanimous, and most expressed concern about allowing prosecutors to bring serious federal charges based on broadly worded statutes. In June, for instance, Justice Brett M. Kavanaugh, writing for six members of the court, said that making it a crime for politicians to accept after-the-fact gratuities for their actions would set “a vague and unfair trap for 19 million state and local officials.”
The first case, from 2016, concerned Bob McDonnell, a former governor of Virginia. Mr. McDonnell was convicted in 2014 after accepting travel on a private jet, a Rolex, the use of a vacation home and a Ferrari, along with substantial loans from a business executive whose company made nutritional supplements that he hoped to have tested by a state university.
A federal appeals court upheld Mr. McDonnell’s conviction, saying that the governor had “exploited the power of his office in furtherance of an ongoing effort to influence the work of state university researchers.”
Chief Justice John G. Roberts Jr., writing for a unanimous court, disagreed, reasoning that Mr. McDonnell could be prosecuted only if he had accepted benefits in exchange for an “official act,” which the court defined as “a formal exercise of governmental power.”
The governor’s considerable efforts on behalf of his benefactor did not clear that bar, the chief justice wrote. That was so, he said, even though the governor had arranged meetings for, attended events with and contacted other government officials on behalf of the executive.
The crucial term in the decision — “official act” — also figured in Chief Justice Roberts’s majority opinion in July granting substantial immunity from prosecution to former President Donald J. Trump.
But there the chief justice interpreted the term much more broadly, saying that a president’s official acts were those “within the outer perimeter of his official responsibility.” That had the effect of making much if not most of Mr. Trump’s conduct during his presidency subject to at least presumptive immunity.
The two interpretations of the same phrase, both shielding government officials from accountability, are hard to square, Professor Chafetz said.
“They really do seem to go in different directions,” he said. “If something is official enough to get you immunity, then it should be official enough to be the kind of thing you can’t accept money for doing.”
Context matters, of course, and the same term may have a different meaning in a federal anti-corruption statute and in the interpretation of the separation of powers called for by the Constitution. And the two decisions share a general theme, said James Burnham, who represented Mr. McDonnell and later served as a lawyer in the Trump administration.
“The through line between cases like McDonnell and the Supreme Court’s immunity decision is a broad concern about overzealous prosecutors using vague statutes to pull conduct into the criminal system that does not belong there,” he said.
Chief Justice Roberts made the same connection, citing the McDonnell decision in granting immunity to Mr. Trump. “The hesitation to execute the duties of his office fearlessly and fairly that might result when a president is making decisions under ‘a pall of potential prosecution,’” he wrote, quoting from the earlier decision, poses a risk to effective government.
The five decisions limiting public corruption prosecutions were of a piece with a line of campaign finance cases that started with Citizens United, the 2010 decision that said the First Amendment protects independent political spending by corporations and unions. There is, Justice Anthony M. Kennedy wrote for the majority, only one justification for restricting such spending: quid pro quo corruption akin to bribery.
Money spent for “ingratiation and access” is not enough, Justice Kennedy wrote, anticipating the line the court would draw in the McDonnell case.
“The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt,” Justice Kennedy wrote, adding: “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak"
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