Friday, April 29, 2016

Something to Know - 29 April

Jeff Danziger

This is a repeat, after a fashion, from yesterday's LA Times to today's NY Times.   Never the less, it bears repeating, and we cannot over estimate the damage that will be inflicted if the Supreme Court rules that bribery is protected under the Constitution.   We have no room for it, and you need to know what is going on here:

There's No Such Thing as a Free Rolex

THIS week, the Supreme Court heard McDonnell v. United States, the case of Bob McDonnell, the former governor of Virginia who is appealing his 2014 conviction for public corruption. Although the court's ruling is not expected until June, in Wednesday's hearing several justices seemed set on undermining a central, longstanding federal bribery principle: that officials should not accept cash or gifts in exchange for giving special treatment to a constituent.

Justice Stephen G. Breyer dismissed the idea that, in the absence of a strong limiting principle, federal law could criminalize a governor who accepted a private constituent's payment in exchange for intervening with a constituent problem. Justice Samuel A. Alito Jr. expressed disbelief that an official requesting agency action on behalf of a big donor would be a problem. A majority seemed ready to defend pay-to-play as a fundamental feature of our constitutional system of government.

In September 2014, after a six-week trial, a federal jury convicted Mr. McDonnell and his wife, Maureen, on multiple counts of extortion under the Hobbs Act, a key statute against political corruption, and honest-services fraud. It was not a complicated case. Jonnie R. Williams Sr., the chief executive of a dietary supplement manufacturer, Star Scientific, had showered the governor and first lady with gifts in return for favors.

We're not talking about a few ham sandwiches. The McDonnells took expensive vacations, a Rolex, a $20,000 shopping spree, $15,000 in catering expenses for a daughter's wedding and tens of thousands of dollars in private loans. In exchange, the governor eagerly promoted Mr. Williams's product, a supplement called Anatabloc: hosting an event at the governor's mansion, passing out samples and encouraging universities to do research.

There was ample evidence of connection between the favors and the governor's actions. In one instance, Mr. McDonnell emailed Mr. Williams asking about a $50,000 loan, and six minutes later sent another email to his staff, requesting an update on Anatabloc scientific research. For the jury, that was more than enough to find Mr. McDonnell guilty.

The former governor has claimed on appeal that he had a First Amendment right to accept these gifts. He also disputed that holding meetings, hosting events at the governor's mansion and recommending research were "official acts." There were quids, he argued, but no quos.

And the justices seem poised to agree. Their main worry appeared to be that Mr. McDonnell's prosecution had criminalized what they perceived as normal, day-to-day political behavior — seemingly more concerned for the chilling effect of federal bribery law on an elected official who accepts a Rolex than for the citizens who are hurt by such self-serving behavior.

To overturn the McDonnells' convictions, however, would also overturn more than 700 years of history, make bad law and leave citizens facing a crisis of political corruption with even fewer tools to fight it.

The legal principles involved date from England's Statute of Westminster of 1275, which said that no officer of the king should take any payment for his public duties except what was owed by the monarch. In 1914, the United States Supreme Court held that official acts included situations "in which the advice or recommendation of a Government employee would be influential," even if the official did not "make a binding decision." In other words, an official may still be guilty of accepting a bribe even if he is not the final decider.

As modern corruption law developed, the axiom that an official shouldn't accept gifts for public duties, broadly understood, was a basic feature of American law. The Supreme Court has held that under the Hobbs Act, "the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts."

Otherwise, only the most unsophisticated criminal would ever get caught. A clumsy influence seeker might write an email offering "five diamonds for five votes in Congress," but the powerful corrupting forces in our society would avoid explicit deals and give lavish gifts tied to meetings and speeches, winking and nodding all the while.

In its Citizens United ruling, the court gutted campaign finance laws. It acknowledged that American politics faced the threat of gift-givers and donors trying to corrupt the system, but it held that campaign finance laws were the wrong way to deal with that problem; bribery laws were the better path. Now, though, the court seems ready to gut bribery laws, saying that campaign finance laws provide a better approach. But if both campaign finance laws and bribery laws are now regarded as problematic, what's left?

With the Supreme Court apparently imagining that there is some other, simple-to-enforce bribery law, we citizens are left empty-handed. This is the first case since Justice Antonin Scalia's passing to directly address what corruption is; the issue is a critical test of the court.

At the Constitutional Convention in 1787, the framers devoted themselves to building a system that would be safe from moneyed influence. "If we do not provide against corruption," argued the Virginia delegate George Mason, "our government will soon be at an end."

Today, Virginia's former governor proposes that there is a "fundamental constitutional right" to buy and sell access. If the court finds in his favor, it will have turned corruption from a wrong into a right.

Zephyr Teachout, an associate professor of law at Fordham and a candidate for New York's 19th congressional district, is the author of "Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United."


Donald Trump aids and abets violence.

- An American Story

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