Last week, United States Supreme Court Justice Stephen Breyer framed the overarching issues facing the Court during oral argument in United States v. McDonnell this way:
One, political figures will not know what they’re supposed to do and what they’re not supposed to do, and that’s a general vagueness problem.
And the second is, and call it a separation of powers problem. The Department of Justice in the Executive Branch becomes the ultimate arbiter of how public officials are behaving in the United States, State, local and national.
Oral Argument Transcript at 32 (April 27, 2016).[1] The Court’s ruling on these issues – expected sometime in June of this year – may define, or redefine, the scope of appropriate behavior for public officials in the United States in a dramatic new way.
As we have written before, former Virginia Governor Robert McDonnell was convicted at trial of violations of the honest-services wire fraud statute, 18 U.S.C. §§ 1343 and 1346, and of Hobbs Act extortion under 18 U.S.C. § 1951(a)[2]. See our previous discussion here. The facts underlying the prosecution centered on favors McDonnell allegedly provided for a constituent in return for “multiple five-figure payments and loans, expensive getaways, shopping trips, golf outings, and a Rolex watch.” United States v. McDonnell, 792 F.3d 478, 515 (4th Cir. 2015).
The argument before the Supreme Court centered in large part on where to draw the line between routine advocacy by a public official on behalf of his/her constituents on the one hand and violating one’s duty of honest services on the other. Put legally, the Court is attempting to define what constitutes an illegal quid pro quo arrangement.[3] Members of the Court peppered McDonnell’s counsel and the Solicitor General with a range of hypotheticals as they struggled to come to terms with how and where to draw that line. The answers the two sides gave reveal a wide and deeply important gulf that the Court will attempt to bridge in order to ensure honest conduct by our elected officials while recognizing the need and historical precedent for advocacy by those officials on behalf of their constituents and those interests they support.
Mr. McDonnell’s counsel argued for a bright line rule that authorized a range of supposedly routine tasks by carving out categories of prohibited actions. Noel Francisco, counsel for Mr. McDonnell asked the Court to limit the definition of official action to “either making a decision . . . or you’re urging someone else to do so.” Oral Argument Transcript at 14. This led to a lengthy discussion with Justice Breyer as the Justice searched for the exact wording necessary to define official action and to cabin the scope of illegal conduct. As Justice Breyer told Mr. Francisco, “you have to have the standard that...
