By Cara L. Gallagher, weekend contributor
Oral arguments for the last case of the Supreme Court’s term were this week. The case, McDonnell v. U.S., was about ethics and potential corruption between a donor and the former governor of Virginia. The timeliness of this case is not lost on this citizen of Illinois, where we should probably consider putting links to contribute to our candidates’ legal defense funds on our ballots. That’d be funny if their chances of going to jail for ethics violations or corruption weren’t actually greater than fifty percent. Four out of the last seven governors have been imprisoned. But at least our criminal governors make it easy on the courts! Dear Children’s Memorial Hospital, I won’t release your $8 million of state funding until you give me a $50,000 campaign contribution. Sincerely, Gov. Rod Blagojevich.
But what would it mean if for “the first time in our history that a public official has been convicted of corruption despite never agreeing to put a thumb on the scales of any government decision.” Do we have to wait for them to put a thumb on the scale in order for it to be punishable corruption? Today’s case shines a spotlight on former Virginia governor Robert McDonnell and could serve as an opportunity for the Supreme Court to send a bold warning to elected officials everywhere that quid pro quo corruption need not be as heavy handed as a thumb on a scale.
The Court will be answering two legal questions: First, whether or not McDonnell violated the federal bribery statute and the Hobbs Act by accepting gifts, personal loans, and campaign contributions from donor Jonnie Williams of Virginia-based Star Scientific Inc. in exchange for taking “official action.” Williams needed published academic research in order to get FDA approval of his dietary supplement Anatabloc. The government, represented by Deputy Solicitor General Michael Dreeben for his 100th oral argument in the SCOTUS, McDonnell’s acceptance of gifts from Williams and subsequent arrangement of meetings with institutions like Virginia medical schools and universities, state agents, and a reception for healthcare leaders hosted by McDonnell at the Governor’s mansion, constitute abuses of official action.
The second question is whether or not the prosecution in the lower court violated McDonnell’s Sixth Amendment rights during voir dire by neglecting to ask potential jurors whether or not their knowledge of the publicity surrounding the alleged scandals shaped their opinion of McDonnell’s innocence.
You don’t have to be from a state rife with corruption like Illinois to care about this case. At a time of significant political distrust and skepticism of the status quo, themes espoused by endearing national cynic Bernie Sanders and blustery Washington outsider Donald Trump, McDonnell’s case is relevant and well-timed. It may serve as an ideal opportunity if the U.S. can get five Justices to write an opinion that demands an end to such corruption, the consequences of which inhibit voter trust, voter efficacy, and civic engagement. This may be optimal for the Justices given the relatively low stakes consequence for McDonnell, who has held off serving two years in prison until his case appeared before the Court.
The Justices will ultimately decide whether or not McDonnell violated a federal statute, but curiosity about the relationship between donors and politicians is at the core of this case and what those feeling the Bern and wanting to “make America great again” care about. This case is about access, not just tit-for-tat favors. Even if Sanders and/or Trump make you cringe, they’re both crushing it in one area: their reluctance to take money from interest groups and big donors. This bold move doesn’t just engender a credibility that is working with voters, it also liberates their campaigns from the entanglements of donors, eliminating their chances of ending up in a situation like Robert McDonnell. Pay-to-play political scheming is one of the core beliefs driving voters to support populist candidates like Bernie Sanders and Donald Trump.
Robert McDonnell hadn’t officially met Jonnie Williams prior to his election, but McDonnell knew him well enough to use Williams’ personal airplane during his campaign. Shortly after, Williams paid McDonnell’s debt with a $50,000 loan and gave the family a check to cover McDonnell’s daughter’s wedding caterer dinners. He also paid for shopping sprees at Oscar de la Renta and Louis Vuitton in New York City, golf trips, new golf clubs and shoes, vacations, and a Rolex. To top it off, Williams provided use of his Ferrari and contributed $100,000 to McDonnell’s campaign and PAC.
So what did Williams get out of this? According to McDonnell, “routine political courtesies: arranging meetings, asking questions, and attending events.” In short, nothing outside the legal and ethical boundary lines. “Neither Williams nor Star received ‘a dime of state money’ or any other state benefit.”
Historically, courts are inclined to punish quid pro quo corruption, or “this for that” brokering, where a transfer of goods is contingent on another transfer and involves officials using the privileges they have as a result of their political position. Williams’ showered hundreds of thousands of dollars in gifts and benefits on McDonnell and his family – there’s the “quid,” but where’s the “quo?” As no explicit evidence exists along the lines of “Dear Jonnie, thanks for the vacation! Here’s that study you wanted from UVA” the challenge of a standard defined as rigidly as quid pro quo has been interpreted makes prosecution very difficult.
Are we to believe Williams’ gifts were acts of pure generosity in which nothing was expected in return? Is anything ever really free? Perhaps in unconditional relationships like with family members or very old friends, but between a governor and a donor?
McDonnell and Williams aren’t former college roommates, relatives, or guys whose wives grew up together. The genesis of their relationship is so rooted in politics, had one not been running for governor at the time, they might never have associated with one another. Given this lopsided dynamic, and the absence of any relationship or history prior to McDonnell’s inauguration, why else would Williams continue to grant McDonnell’s requests if he wasn’t actively trying to gain special access? There couldn’t be a more conditional relationship than the one a newly elected governor has with a donor who let the candidate use his plane, contributed to his campaign, and gave fancy gifts. Why is it the standard has to rise to the level of a smoking gun email, text message, or proof that the generosity was rewarded in the form of request granted? I can request the same seemingly “routine political courtesies” like meetings with my governor, questions of my mayor, or entry to events, but there is absolutely no way I’m going to get them without the kind of access Williams bought and McDonnell enabled. Such a lavish showering of gifts to most appears awkward, tawdry, and should inspire a healthy dose of skepticism.
The Court might very well split 4-4 on this case. But if the Justices don’t, they may consider affirming the lower court’s decision sending McDonnell to jail, and use the opinion as an opportunity to remind us that anti-corruption laws aren’t there to merely punish quid pro quo corruption but to help preserve this thing called trust, and it’s “effing golden.” A decision is expected in June.
Follow Cara Gallagher on Twitter @SupremeBystandr
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