By Ross Parker
The Supreme Court will hear oral arguments in four difficult criminal cases on the April docket. All without the incisive, biting and entertaining interrogation of Justice Scalia. But last month Justice Thomas asked his first question in more than a decade. That must have raised some eyebrows.
One of the highest profile cases of the term, McDonnell v. United States, will be among those argued. Bob McDonnell was the popular governor of Virginia, and his name had been mentioned as a Vice Presidential running mate. Probably not any more since his prosecution for bribery.
His financial problems led him and his wife to seek various loans and gifts valued at over $175,000 from a businessman who was promoting a dietary supplement under review by the FDA. The gifts included a $20,000 shopping spree by Mrs. McDonnell, a former Washington Redskins cheerleader. Not that I hold anything against former cheerleaders (some of my best friends…), but she does seem to be at the center of both the “quid” and the “quo” of this sordid affair.
The issue before the Court is whether the Hobbs Act felony of agreeing to take “official action” in exchange for something of value by exercising actual government power (i.e. bribery) was proven in the case, as opposed to merely providing routine political courtesies, benefits and access to others.
The evidence at trial included the following “official acts” by the governor, all around the time that the McDonnells were receiving their goodies: asking the Secretary of Health to send an aide to a meeting where Mrs. McDonnell and the businessman could pitch the product; attending a luncheon arranged by Mrs. McDonnell where the businessman gave two state medical schools $200,000 to research the product; sending an ambiguous email (at Mrs McDonnell’s request) to a staffer regarding the medical school’s lack of responsiveness; inviting the businessman to a reception for the “Health Care Leaders”; and finally suggesting a meeting to discuss whether the product could be included in the state employee health plan. Note the First Lady’s involvement. Cherchez la femme
None of these actions by the governor resulted in any specific benefit to the businessman. Nor did the governor make any request or order that a government official do anything other than exercise his/her independent judgment. McDonnell said that he was doing nothing more than helping a state business and extending political courtesies.
The Solicitor General argues that at least some of the actions amounted to personal benefits conferred in exchange for an agreement to influence government matters. But McDonnell’s supporters filed more than a dozen briefs which warn that the expansion of the statute to include this kind of conduct will create an ill-defined situation where aggressive federal prosecutors could criminalize what has been merely political custom.