Part II (the decision analyzed)
Overshadowed by an abortion decision, the most far-reaching decision of the 2016 term is this one. By drastically altering the definition of government action, the Court has given corruption unprecedented license.
The standard in the case is 18 USC section 201 (a)(3), which makes it a crime for “a public official or person selected to be a public official to directly or indirectly, corruptly” to demand, seek, receive, accept or agree to accept “anything of value” in return for being “influenced in the performance of any official act.”
Most of this has been stipulated or proven. McDonnell was a public officer. He received considerations of considerable value, including cash, from Williams, a constituent. It was proven to the jury’s and the Court’s satisfaction that McDonnell understood that these weren’t gifts but quids, requiring certain quos:
McDonnell agreed to and did perform these actions. The only remaining dispute is whether the actions were official.
18 USC sec 201 (a)(3) defines an official act as:
“any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public officer, in such officer’s official capacity, or in such officer’s place of trust or profit.”
The decision relies on the condition “in such officer’s official capacity” instead of “in such officer’s place of trust or profit”. This will be significant.
The statute states that the officer’s action must have an object. What kind of object? The Court held that the Government’s definition, which included pursuing broad policy objectives such as “general economic development”, was too broad. The Court claims it instead only requires action to be “focused and concrete”. We agree that the Government’s definition is too broad but the Court’s narrows in application, adding other factors along the way (particularly the kinds we discredit in the above). More to the point might be “a purposeful act concerning government matters in a relevant context or with relevant officers.”
But McDonnell has a theory, and the Court inexplicably agrees. The theory arbitrarily divides acts by a government officer into categories of ‘official’ and ‘unofficial’, creating a new category of government work unknown in the law until today.
Then of course it places actions like setting up a meeting, talking to another officer, or organizing an event under this new category: "typical", "informal", "unofficial" conduct, daily duties that an officer “customarily performs,” but somehow not “specific duties of his office”.
It’s amazing that the Court accepts such drivel to excuse serious crimes. But not only does the decision accept it, it phrases actions inaccurately to squeeze them into it.
It errs by describing actions only in vague terms like “talking to another officer,” omitting the fact that this “talking” addressed government matters in the official capacity of those officers and was purposeful, an attempt to persuade them.
Then it repeatedly and somewhat disparagingly uses the term “typical” to describe actions. How is a typical action less important or official than an atypical action?
By saying “any decision or action on X”, X being a question, matter, cause, suit, proceeding or controversy that may require a government decision or action, the statute can at first appear to suggest a covered action must be something of some weight until the reader notes that:
The government fails to stress this but since the statute says it plainly the Court can’t ignore it.
And the objects of McDonnell’s actions did pertain to a focused and concrete act of governance that was within the target officers’ official capacity.
Discussing how to allocate public funds among fellow officers is a fairly large part of the work of a government officer. When conducted for someone else by someone outside of government it's lobbying, but by an appropriate government officer it's an ordinary constituent service unless there's a quid pro quo relationship.
If making such requests, seeking compromise, and attempting persuasion aren’t official government acts much of an officer’s time is spent doing unofficial acts, including fairly involved ones at public expense. If they’re not official acts, what are they? The decision never says, only what they suddenly aren’t. And why are we paying for all this undefined unofficial conduct? Government officers have many official demands on their time. If making requests regarding the allocation of funds, seeking compromise, and persuasion aren’t necessary to governance and can be eliminated it would save officers’ time and the people’s money for genuine official acts.
But of course they are official acts.
First, not every official duty is listed in a given office’s job description. Every officer’s official capacity includes coordination with officers with related bailiwicks using discussion, persuasion and compromise, even talking to another officer about his duties rather than yours. Siloing government functions would at best leave to chance whether all results would fit together to serve the public’s needs.
Between Corruption and Treason: What can we do?
Image: Dawn Hudson
Fraud upon the court (Fed. R. Civ. P. 60(b) and (d)) is defeating or violating the proper functioning of a court, by or including an officer of the court. Its elements are:
If a court's work is undermined even once its Preambular purpose is defeated: its ability to establish justice has been undermined. There's no statute of limitations for fraud upon the court.
Fraud upon Congress or any office of the United States should be defined as:
any act by or including any member of Congress or officer of the United States that either
Each of these defeats the interests of the United States.
The public has a right to such a statute. We ought to be able to convict government officers or members of Congress of defeating their offices' functions without having to prove anything else.
This offense would fall between corruption and treason. The courts would determine where an offense falls on this spectrum. As an impeachable offense, it could also be investigated by the House. In the process, either a grand jury or the House could also consider whether the conduct amounted to treason.
A statutory offense is an offense against the law even if there are no proximate victims. Undermining an election would be one example. Shutting down the government would be another. Neither Congress nor the President should be able to do this.
Because corruption statutes are so narrow and treason is a high bar, we should press Congress to criminalize fraud upon the United States with a statute following the pattern of fraud upon the court, excluding both mens rea and a statute of limitations. We can begin this process by passing corresponding state bills or ballot initiatives.
Our statutes don't operate in the past so it couldn't be used regarding the 2016 election, but we can use what we've learned to protect our elections and the rest of our government functions in the future.
This could include the near future.
"Treason against the United States,
shall consist only in levying War against them,
or in adhering to their Enemies, giving them Aid and Comfort."
Article III, section 3
Even before we had Cabinet secretaries seemingly chosen to defeat their offices' purposes we had members of Congress openly declaring their intention to shrink the federal government until it could be drowned in a bathtub. It's time we took a serious look at our options.
Undermining your own government office's work, or subverting it to a contradictory purpose, is legally neither corruption nor treason [the sole exception is warring against the Constitution by a United States judge, which is treason (28 USC 455)]. The Ethics in Government Act focuses on financial crimes or quid pro quo, not damage to the public interest. Anti-corruption statutes are the same: when government officers or members of Congress are defendants, prosecutors bear the burden of proving a tangible motive. But today it appears offices may be taken for the sole purpose of undermining them.
And we kept our definition of treason narrow to prevent those in power from using it to persecute their opposition. You have to be or conspire with an enemy of the United States. This means it has to occur in wartime, the only time we have enemies.Of course, an attempted coup is also an act of war. It's treason for any of us to levy war against us. Any citizen can be an enemy of the United States if they attempt a coup during what we believe to be peacetime. But an attempted coup must try to take over the entire United States government.
For example, even if the proper functioning of the 2016 election turns out to have been undermined, the offense isn't treason. This is even true if it was undermined by Americans conspiring with another country, because we're not at war (see Extraconstitutional Powers: the Cases for the problem of undeclared wars). And we protected the United States government against electoral coups in three ways:
Besides, the next election could arguably reverse its impact. (It's an interesting example of political theater that members of Congress, who know these protections perfectly well, are inflaming the public with calls of treason anyway.)
If even one United States election is undermined our ability to ordain and establish government has been undermined. But the courts have limited constitutional violations they will hear to cases with proximate victims (see the section The Most Important Clause in American Law for how this happened).
Corruption defeats the interest of the United States by subverting the proper functioning of one or more offices to another intent. We could make corruption an attempted coup if it attempts either to stop the effective functioning of an entire branch or other significant part of the United States government or to subvert either of these to an intent other than the intent of the people.
But this would be both too much and too little. It would violate the text unless conduct met the high bar of levying war against the United States. And it wouldn't cover corruption that affects government functioning but only briefly and in a small way.
We can go an easier way. We have no statute criminalizing fraud upon the United States: defeating or violating the proper functioning of Congress or any office of the United States, by or including any member of Congress or officer of the United States. We have statutes criminalizing fraud against the United States: 18 USC 287 (false claims), 371 (conspiracy), 1001 (false statements), 341 (mail fraud) and 343 (wire fraud). But fraud against the United States either doesn't include any officer or involves a quid pro quo - even when they appear to cover "the purpose of impairing, obstructing or defeating the lawful function of any department of government" (Hass v Henkes, 216 US 461 (1910) at 479-480, regarding 18 USC 371).
But we have a parallel civil procedure violation today.
Drama queen amici bonus point! Former White House counsels to our last few Presidents signed this statement: “If this decision is upheld, it will cripple the ability of elected officials to fulfill their role in our representative democracy.” Discuss. They may feel crippled, but what they are is hobbled. Hobbling our officers to our ethical standards is the law’s job. We can’t watch them every moment. These cases are the oversight and clarification opportunities we are given. Because there’s only one government for askers to deal with, officers set the ethical standard. The Court can lock in our standard and that is no bad thing.
What are some other advantages of upholding the decision?
Does the Constitution give prosecutors power over government officers? It gives the law power over governmental conduct.
Who pays for federal officers’ services? We do.
Article I, Section 6: “The Senators and Representatives shall receive a Compensation for their Services,”
Article II, Section 1: “The President shall, at stated Times, receive for his Services, a Compensation,”
Article III, Section 1: “The Judges […] shall, at stated Times, receive for their Services a Compensation,”
The Constitution isn’t written in the third person. It begins “We, the people…,” addressed by us to the world at large. By expressing that these officers will be compensated while specifying no other payment arrangement we, the people, express our intent to pay. By setting the terms of their employment we mandate that they are not to seek compensation elsewhere. Extortion by a Senator, Representative, President, or federal judge or Justice violates the Compensation clauses.
Who pays for state officers’ services? Level 1 - We always have. It’s unquestioned policy in every state. But the Compensation clauses effectively limit the conduct of any office in the United States.
Who pays for state officers’ services? Level 2 - We do, because it’s our doctrine.
Do we need the Court to create a new legal standard for bribery or extortion under color of official right? No. We already have a legal standard. It doesn’t say “except for little compensations like lunches, or little services like the use of the informal influence attaching to the office”. The Constitution says service will be compensated. All service. It’s a solid line drawn at the beginning because we deserve no less, and perhaps because the only place where this line can be solidly drawn is at the beginning.
Why haven’t these protections proved strong enough? See The Most Important Clause in American Law, for starters. Then pass this amendment. Corruption won’t just go away by itself.
Second, since a one-person office could never cover the official functions of, for example, a state Governor:
The Court is confusing an entire act with the weighty act that is the meat of that act. Weighty acts are only about 1% of the official acts that make up any entire act. If McDonnell feels minor government acts don’t live up to his definition of what a Governor does, that’s just his ego talking.
Remember the second possible condition “which may by law be brought before any public officer in such officer’s place of trust or profit” which the decision discards, instead relying solely on the first possible condition, “which may by law be brought before any public officer in such officer’s official capacity”?
It’s useful in this case after all. Among other things, it clarifies the definition of official conduct by referring to physical reality: the facilities, equipment and personnel authorized to fulfill your office’s official capacity.
‘Official’ doesn’t mean ‘weighty’. It means ‘the people’s’. Another word for ‘official’ is ‘authorized’. An official act is any specific act or any type of act that must be done once, occasionally, or regularly for the people's business to proceed.
It isn't limited to specific acts. If a type of act is a typical part of conducting the people's business it's an official act.
The Constitution doesn’t divide government officers into ‘officers’ and ‘employees’. It expresses that our government is made up of elected and appointed officers with principal officers below them and inferior officers below them.
Article II, section 2:
“[The President] may require the Opinion,in writing,
of the principal Officer in each of the executive Departments…”
“[The President will appoint officers
to a number of named positions]
but the Congress may by Law vest the Appointment
of such inferior Officers, as they think proper,
in the President alone, in the Courts of Law,
or in the Heads of Departments.”
Calling some inferior officers ‘employees’ began when our bureaucracy expanded to the point where whole levels of inferior officers arose who, hiring still more officers below themselves, wanted to be distinguished from them.
This major change in the law arrives buried among flashier but less governmentally transformative decisions. The definition of corruption has already been narrowed over decades until only the boldest quid pro quo can easily be prosecuted. Now that’s been pruned to a twig. If 99% of what a government officer does is no longer governmental when can a quo exist? When two time-stamped drafts of a ruling turn 180 degrees and police find a bag of marked and fingerprinted bills that was exchanged in between them?
One long section is severely and inaccurately devoted to warning us all that a Government win would chill ordinary constituent-officer relationships. This ignores the quid pro quo required to dirty such relationships. “Honest graft” (per Plunkett) is far less common than the decision appears to believe. No ordinary constituent would feel the slightest chill.
Why does this analysis digress into the constitutional status of staffers? Prosecutors like convictions. The inadvertent development of a whipping-boy system would amuse corrupt officers tremendously.
And spouses have no constitutional status at all.
What is the ordinary business of politics? Not sales.
When is it wrong to write letters on behalf of constituents, arrange meetings, accept their phone calls, or indeed use any power, authority or formal or informal influence of the office for them? When they pay you for it. Our payment of officers’ salaries covers each and every nuance and perquisite of their offices. All public service is free because we’ve already paid for it. Providing and accepting any consideration for any part of an office is bribery and extortion.
How do we know?
What turns a gift into a quid? By the bribery standard, a quo. In life, the reasonable likelihood of a quo request at some time.
Because a different statute prevents your exerting the influence of your office for family or close friends, bribery or coercion isn't relevant.
Where is the quo line? Ask, would this be requested of you if you were not a government officer with the authority, power or formal or informal influence it affords?
How large does the quid have to be? What about the quo? The Court kept returning to size. A permissible gift is a de minimis gift without strings. But neither quids nor quos are gifts, so their size or dollar value can’t render them permissible.
Is accessing a government officer for someone an official act? Yes. It uses your office’s influence. No decision by the target need be influenced because the relevant government decision is to provide access, the relevant exercise of government power is to provide access and the ineligible seller is the government officer who makes that decision and exercises that power.
An official act, per Justice Breyer, is “the exercise of governmental power to require citizens to do or not to do something, or to shape the law that governs their conduct”. When the exercise of any nuance or perquisite of a governor’s office influences whether a target meets with an asker, that standard is met even if the target so required feels flattered, or considers it an ordinary practice.