[EL] Fwd: McDonnell

Mon Jun 27 11:02:03 PDT 2016

Rick is right that that's what was worrying the Justices.  In short:

1.  People give elected officials (and candidates) things all the time,
including campaign contributions and "thank you" gifts.

2.  Elected officials do favors for their supporters all the time with
respect to possible state action, often because they concur with those
supporters' views about what the government ought to be doing, or simply
because they think it is their obligation to be of service to their
constituents as a matter of good government, wholly apart from whether
they've received anything from those constituents.

3.  Juries will often conclude that the favors were a *function *(or "but
for" result) of the contributions/gifts, even in some cases where they were
not.  And this is so even though the prosecutor has the burden of
showing, *beyond
a reasonable doubt*, that the quo was triggered by the quid.  (At oral
argument, Justice Kennedy expressed contempt for the government's argument
that the "beyond a reasonable doubt" burden for showing a quid pro quo was
a serious check on prosecutorial overreach.  In effect, he said:  "Give me
a break.")  And the risk of such "false positives" by the jury will
(arguably) have a harmful chilling effect.

So, for example, here's the key paragraph of Roberts's opinion, making this
very point:

But conscientious public officials arrange meetings for
constituents, contact other officials on their behalf, and
include them in events all the time. The basic compact
underlying representative government assumes that public
officials will hear from their constituents and act appropriately
on their concerns—whether it is the union official worried about a plant
closing or the homeowners who wonder why it took five days to restore power
to their neighborhood after a storm. The Government’s position could cast a
pall of potential prosecution over these relationships if the union had
given a campaign contribution
in the past or the homeowners invited the official to join
them on their annual outing to the ballgame. Officials
might wonder whether they could respond to even the
most commonplace requests for assistance, and citizens
with legitimate concerns might shrink from participating
in democratic discourse.

And put that way, I suppose that the government's position does appear to
be troubling (although I personally think "participation in democratic
discourse" is more than a tad euphemistic about the phenomenon we're
describing here--even an invitation to a ballgame (i.e., expensive tickets)
is not the paradigm of "democratic discourse" in my book).

Two caveats, however:

1.  At oral argument, several of the Justices--Breyer and Kennedy, for
example--also appeared to be of the view that there's absolutely nothing
wrong even in the case where the elected official *does *set up the meeting
as a result of the quid.  "It happens every day," was their basic
posture--"it's how the government works:  you scratch my back, etc."  And
there's at least a hint of this idea in Roberts's opinion.  As Michael
Dreeben, appearing for the government, explained, however, the fact that
the practice is ubiquitous is a bug, not a feature--it's long been
understood that that sort of everyday exchange *is the problem*.  (The fact
that there's "gambling going on in here" might not be "shocking," but that
doesn't make it lawful.)  I worry that at least some members of the Court
now appear to be entirely sanguine about this.

2.  Why doesn't the Court's same logic--the same concern Roberts
describes--apply to the types of "official acts" that it *is *willing to
recognize as predicates for bribery convictions?  After all, it's just as
common for officials to try to influence the *outcomes *of the official
acts of their subordinates so as to reward benefactors/constituents --
conduct for which they can be convicted -- as it is for them to instruct
those same subordinates to take a meeting before they make their decision.
Indeed, the latter is often a more valuable quo than the former.  (Everyone
who's been in, or dealt with, government, or who's listened to or seen
*Hamilton*, knows that being in the room where it happens is half the
battle, if not more (or at the very least, it's a necessary requisite).)
 If the risk that the jury might mistake the question of causation in the
latter case is nothing to worry about, why does it become so troubling in
the former?

On Mon, Jun 27, 2016 at 12:30 PM, Daniel Tokaji <dtokaji at gmail.com> wrote:

> 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.
>
> [image: Share]
> <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>:
>
> 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.
>
> [image: Share]
> <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>
> 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.
>
> [image: Share]
> <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 …”
>
> [image: Share]
> <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>
> “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.
>
> [image: Share]
> <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.
>
> [image: Share]
> <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>
> 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.”
>
> [image: Share]
> <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>
> 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>
> .
>
> [image: Share]
> <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>.
>
> [image: Share]
> <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>.
>
> [image: Share]
> <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
>
> _______________________________________________
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> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
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