[EL] Fwd: McDonnell

Mon Jun 27 09:30:16 PDT 2016

Forwarding an email from Rick Pildes, which doesn't seem to have made it to
the listserv.

---------- Forwarded message ----------
From: Pildes, Rick <pildesr at mercury.law.nyu.edu>
Date: Mon, Jun 27, 2016 at 11:53 AM
Subject: McDonnell
To: Daniel Tokaji <dtokaji at gmail.com>, "law-election at uci.edu" <
law-election at uci.edu>

In my view, the Roberts opinion does an excellent job at drawing the
difficult line between crime and the ordinary, if sometimes tawdry,
workings of democratic politics. This is the most important opinion since
the 1990s on defining this boundary.  An important point that would be
inappropriate for the Court to mention is that juries (reflecting the
intuitions of most Americans) view almost any association of politicians
with money as corrupt, but there is no way to take money and influence out
of politics altogether.  All the more important, then, for the Court to
provide today’s greater clarity about legitimate if unseamly politics and
bribery.  One of the most important aspects of the opinion that might be
overlooked are passages like these, which also explain why McDonnell could
possibly be retried:

“Of course, this is not to say that setting up a meeting, hosting an event,
or making a phone call is always aninnocent act, or is irrelevant, in cases
like this one. If an official sets up a meeting, hosts an event, or makes
aphone call on a question or matter that is or could be pending before
another official, that could serve as evidence of an agreement to take an
official act. A jury could conclude, for example, that the official was
attempting topressure or advise another official on a pending matter.And if
the official agreed to exert that pressure or givethat advice in exchange
for a thing of value, that would be illegal.”

The Court should have addressed these issues when former Governor Seigelman
of Alabama sought cert. on similar issues.

Richard H. Pildes

Sudler Family Professor of Constitutional Law

NYU School of Law

40 Washington Square South, NY, NY 10012

212 998-6377

*From:* law-election-bounces at department-lists.uci.edu [mailto:
law-election-bounces at department-lists.uci.edu] *On Behalf Of *Daniel Tokaji
*Sent:* Monday, June 27, 2016 11:08 AM
*To:* law-election at uci.edu
*Subject:* [EL] ELB News and Commentary 6/27/16

Influence of Justice Scalia Felt in Unanimous Decision Throwing Out Gov.
McDonnell Conviction <http://electionlawblog.org/?p=83878>

Posted on June 27, 2016 7:57 am <http://electionlawblog.org/?p=83878> by *Rick
Hasen* <http://electionlawblog.org/?author=3>

The Supreme Court’s unanimous ruling throwing out the conviction of Gov.
McDonnell (while leaving open the possibility of a retrial on a narrower
theory of the case) is sensible and courageous, and shows the continuing
important influence of Justice Scalia in this area of the law. It is hard
to write an opinion letting off the hook someone whose actions were as
odious as Gov. McDonnell, in taking rolexes, funding for his daughter’s
wedding and more from someone who wanted the governor’s assistance in
marketing the equivalent of snake oil. But it was the right thing to do.

In an earlier case, *Sun-Diamond*, Justice Scalia wrote a majority opinion
(involving the conviction of Agriculture Secretary Mike Espy on illegal
gratuity charges) in which Justice Scalia warned about the criminalization
of ordinary politics. This unaninimous opinion by Chief Justice Roberts
follows that same lead. It is not enough that conduct is odious—the rules
governing political action need to be clear enough so that politicians know
the line between politics as usual and crossing the line. In this case, all
the government had to prove was that the Governor contacted state officials
and asked them to take a meeting with the donor. The government did not
have to prove that the Governor sought to influence anyone’s decision on
anything. This raised problems of both a vague statute as well as
overzealous prosecutors (as I argued in an earlier oped in the NLJ).
Prosecutors seek to make a name for themselves by going after corrupt
politicians. But vague and broad laws criminalizing ordinary politics raise
due process problems, selective prosecutions, and unfair treatment. Justice
Scalia signaled this and here a unanimous court followed his lead.

Justice Scalia’s influence was also felt in the mode of analysis.
Tellingly, Chief Justice Roberts begins with a textual analysis of the
statute, and the canon of construction known as noscitur a socciis.  He
uses the textual tools to define what counts as an official act, and reads
that statute in a way that avoids vagueness and makes sense. At least in
the ordinary run of cases, Justices today follow Scalia’s lead and start
with a textual analysis. It is not always the end of the analysis, but it
is always the beginning. And in a case like this, presenting issues of
possible overreach, the textual analysis lined up with the pragmatic
analysis.

This opinion does not mean that there’s an easy path to corruption. Every
state should make it illegal for public officials to accept large gifts
from non-family members. And it may be on remand that McDonnnell will get
convicted. But the law, and the line between politics and crime, must be
clear. On this point, the Court was able to speak in one voice, and the
case would have been 9-0 not 8-0 had Justice Scalia not died in February.

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Posted in chicanery <http://electionlawblog.org/?cat=12>, Supreme Court
<http://electionlawblog.org/?cat=29>
McDonnell on What Is and Isn’t an “Official Act”
<http://electionlawblog.org/?p=83877>

Posted on June 27, 2016 7:52 am <http://electionlawblog.org/?p=83877> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

>From p. 14 of the slip opinion
<http://www.supremecourt.gov/opinions/15pdf/15-474_ljgm.pdf>:

Taking into account the text of the statute, the precedent of this Court,
and the constitutional concerns raised by Governor McDonnell, we reject the
Government’s reading of §201(a)(3) [the federal bribery statute] and adopt
a more bounded interpretation of “official act.” Under that interpretation,
setting up a meeting, calling another public official, or hosting an event
does not, standing alone, qualify as an “official act.”

>From pp. 21-22:

[A]n “official act” is a decision or action on a “question, matter, cause,
suit, proceeding or controversy.  The “question, matter, cause, suit,
proceeding or controversy” must involve a formal exercise of governmental
power that is similar in nature to a lawsuit before a court, a
determination before an agency, or a hearing before a committee. It must
also be something specific and focused that is “pending” or “may by law be
brought” before a public official. To qualify as an “official act,” the
public official must make a decision or take an action on that “question,
matter, cause, suit, proceeding or controversy,” or agree to do so. That
decision or action may include using his official position to exert
pressure on another official to perform an “official act,” or to advise
another official, knowing or intending that such advice will form the basis
for an “official act” by another official. Setting up a meeting, talking to
another official, or organizing an event (or agreeing to do so)—without
more—does not fit that definition of “official act.”

And from p. 28:

There is no doubt that this case is distasteful; it may be worse than that.
But our concern is not with tawdry tales of Ferraris, Rolexes, and ball
gowns. It is instead with the broader legal implications of the
Government’s boundless interpretation of the federal bribery statute. A
more limited interpretation of the term “official act” leaves ample room
for prosecuting corruption, while comporting with the text of the statute
and the precedent of this Court.

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Posted in bribery <http://electionlawblog.org/?cat=54>
Breaking: SCOTUS Vacates McDonnell Conviction and Remands
<http://electionlawblog.org/?p=83868>

Posted on June 27, 2016 7:34 am <http://electionlawblog.org/?p=83868> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Unanimous according to *SCOTUSblog*. Opinion here
<http://www.supremecourt.gov/opinions/15pdf/15-474_ljgm.pdf>. Chief Justice
Roberts writes for the Court.  Rick is working on a quick analysis to be
posted soon.

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Posted in bribery <http://electionlawblog.org/?cat=54>
“Thousands of Republican Donors Avoid Donald Trump”
<http://electionlawblog.org/?p=83873>

Posted on June 27, 2016 7:30 am <http://electionlawblog.org/?p=83873> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

USA Today
<http://www.usatoday.com/story/news/politics/elections/2016/06/26/analysis-republican-donors-avoid-trump/86335080/>:
“Just 29 people who contributed to a super PAC supporting Republican Mitt
Romney’s presidential bid four years ago had donated either to Trump’s
campaign, to the Republican National Committee via a joint fundraising
committee he established with the party or to a pro-Trump super PAC, Great
America PAC …”

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Posted in campaign finance <http://electionlawblog.org/?cat=10>
“Trump’s Problem Is How to Raise It, but Clinton’s Is How to Spend It”
<http://electionlawblog.org/?p=83869>

Posted on June 27, 2016 7:21 am <http://electionlawblog.org/?p=83869> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

CNBC
<http://www.cnbc.com/2016/06/27/trumps-problem-is-how-to-raise-it-but-clintons-is-how-to-spend-it.html>
on Clinton’s fortyfold cash advantage over Trump.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>
A Convention Like No Other <http://electionlawblog.org/?p=83866>

Posted on June 27, 2016 7:02 am <http://electionlawblog.org/?p=83866> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

“Hardly anybody wants to speak at Trump’s convention
<http://www.politico.com/story/2016/06/hardly-anybody-wants-to-speak-at-trumps-convention-224815#ixzz4Cmw9ELa4>,”
Politico report after speaking to 50 prominent Republicans.

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Posted in political parties <http://electionlawblog.org/?cat=25>
Asian Pacific Americans and the VRA <http://electionlawblog.org/?p=83864>

Posted on June 27, 2016 6:59 am <http://electionlawblog.org/?p=83864> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

NBC reports
<http://www.nbcnews.com/news/asian-america/three-years-after-scotus-case-weakened-voting-rights-act-leaders-n599551>:
“Three years after the Supreme Court invalidated part of the Voting Rights
Act, voting rights advocates and some elected officials are concerned that
Asian Americans and Pacific Islanders are among those increasingly
threatened by voter discrimination.”

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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>
Breaking: SCOTUS to Hear NC Racial Gerrymandering Case
<http://electionlawblog.org/?p=83858>

Posted on June 27, 2016 6:40 am <http://electionlawblog.org/?p=83858> by *Rick
Hasen* <http://electionlawblog.org/?author=3>

This morning the Supreme Court agreed
<http://www.supremecourt.gov/orders/courtorders/062716zor_4fbi.pdf> to hear
a racial gerrymandering case from North Carolina, on an appeal brought by
the state (in McCrory v. Harris).  This joins the Bethune-Hill case from
Virginia
<http://www.politico.com/blogs/under-the-radar/2016/06/virginia-redistricting-supreme-court-223946>,
which the Court also agreed to hear.

In Bethune Hill, the three-judge court on a divided basis concluded there
was no racial gerrymander.  In the North Carolina case, the three-judge
court found there was a racial gerrymander.

I expect the Court will consider the cases together, even if they are not
formally consolidatated.

Assuming there are no new Justices before these cases are heard and the
Justices vote the way they voted before in the Alabama racial
gerrymandering case, we go in with a 5-3 Court at least sympathetic to such
claims in the abstract brought by minority plaintiffs against Republicans.
Kennedy sided with the liberals in the Alabama case.

You can find NC’s six questions presented in this jurisdictional statement
<http://www.scotusblog.com/wp-content/uploads/2016/06/mccrory-jurisdictional-statement.pdf>
.

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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
Congratulations Manoj Mate! <http://electionlawblog.org/?p=83855>

Posted on June 26, 2016 7:49 pm <http://electionlawblog.org/?p=83855> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

An update this year’s update <http://electionlawblog.org/?p=83651>:
Whittier Law School has granted tenure to Manoj Mate
<https://www.law.whittier.edu/index/meet-the-faculty/profile/manoj-mate>.

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Posted in election law biz <http://electionlawblog.org/?cat=51>
Wang’s Partisan Gerrymandering Calculator
<http://electionlawblog.org/?p=83853>

Posted on June 26, 2016 7:44 pm <http://electionlawblog.org/?p=83853> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Check it out: Sam Wang has created this site
<http://gerrymander.princeton.edu/> (currently in beta) with online
calculators for the statistical tests described in his recent article
<https://www.stanfordlawreview.org/print/article/three-tests-practical-evaluation-partisan-gerrymandering>
in Stanford Law Review <http://electionlawblog.org/?p=83793>.

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Posted in redistricting <http://electionlawblog.org/?cat=6>

-- 

Daniel Tokaji
Charles W. Ebersold & Florence Whitcomb Ebersold Professor of
Constitutional Law
The Ohio State University | Moritz College of Law

-- 
Daniel Tokaji
Charles W. Ebersold & Florence Whitcomb Ebersold Professor of
Constitutional Law
The Ohio State University | Moritz College of Law | 614.292.6566
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