[EL] Fwd: McDonnell

Mon Jun 27 10:08:51 PDT 2016

Ricks Seigelman point is a good one.  This offers an occasion for Pres. Obaba to pardon him
> On Jun 27, 2016, at 12:30 PM, Daniel Tokaji <dtokaji at gmail.com> wrote:
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> Forwarding an email from Rick Pildes, which doesn't seem to have made it to the listserv.
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> ---------- Forwarded message ----------
> From: Pildes, Rick <pildesr at mercury.law.nyu.edu <mailto:pildesr at mercury.law.nyu.edu>>
> Date: Mon, Jun 27, 2016 at 11:53 AM
> Subject: McDonnell
> To: Daniel Tokaji <dtokaji at gmail.com <mailto:dtokaji at gmail.com>>, "law-election at uci.edu <mailto:law-election at uci.edu>" <law-election at uci.edu <mailto:law-election at uci.edu>>
> 
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> 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:
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> “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.”
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> The Court should have addressed these issues when former Governor Seigelman of Alabama sought cert. on similar issues.   
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> Richard H. Pildes
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> Sudler Family Professor of Constitutional Law
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> NYU School of Law
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> 40 Washington Square South, NY, NY 10012
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> 212 998-6377 <tel:212%20998-6377>
>  
> 
> From: law-election-bounces at department-lists.uci.edu <mailto:law-election-bounces at department-lists.uci.edu> [mailto: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 <mailto:law-election at uci.edu>
> Subject: [EL] ELB News and Commentary 6/27/16
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> 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.
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> 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.
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> 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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>  <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83878&title=Influence%20of%20Justice%20Scalia%20Felt%20in%20Unanimous%20Decision%20Throwing%20Out%20Gov.%20McDonnell%20Conviction&description=>
> 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>:
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> 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.”
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> From pp. 21-22:
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> [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.”
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> And from p. 28:
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> 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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>  <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83877&title=McDonnell%20on%20What%20Is%20and%20Isn%26%238217%3Bt%20an%20%26%238220%3BOfficial%20Act%26%238221%3B&description=>
> Posted in bribery <http://electionlawblog.org/?cat=54>   
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> 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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>  <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83868&title=Breaking%3A%20%20SCOTUS%20Vacates%20McDonnell%20Conviction%20and%20Remands&description=>
> 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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>  <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83873&title=%26%238220%3BThousands%20of%20Republican%20Donors%20Avoid%20Donald%20Trump%26%238221%3B&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>   
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> “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.
> 
>  <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83869&title=%26%238220%3BTrump%26%238217%3Bs%20Problem%20Is%20How%20to%20Raise%20It%2C%20but%20Clinton%26%238217%3Bs%20Is%20How%20to%20Spend%20It%26%238221%3B&description=>
> 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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>  <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83866&title=A%20Convention%20Like%20No%20Other&description=>
> Posted in political parties <http://electionlawblog.org/?cat=25>   
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> 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.”
> 
>  <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83864&title=Asian%20Pacific%20Americans%20and%20the%20VRA&description=>
> Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>   
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> 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.
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> 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.
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> I expect the Court will consider the cases together, even if they are not formally consolidatated.
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> 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.
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> 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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>  <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83858&title=Breaking%3A%20SCOTUS%20to%20Hear%20NC%20Racial%20Gerrymandering%20Case&description=>
> 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>.
> 
>  <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83855&title=Congratulations%20Manoj%20Mate!&description=>
> 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>.
> 
>  <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83853&title=Wang%26%238217%3Bs%20Partisan%20Gerrymandering%20Calculator&description=>
> 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 <tel:614.292.6566>_______________________________________________
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