For the Defense - Volume 1, Issue 3 - 2016 - 34

Rather, in acknowledging the "distasteful" nature of the case, the Chief Justice made clear that the Court's "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. improper action is taken thereafter. Indeed, a bribe recipient's actual consummation of an official act in return for the bribe is immaterial to the bribe recipient's liability.17 The Fourth Circuit similarly rejected McDonnell's argument that the jury should have been instructed that a bribe payor's subjective belief cannot convert a non-official action into an official action and that a public official must have actual or final authority over the end sought by the bribe payor.18 The Fourth Circuit reasoned that whether a bribe recipient has authority over the end sought by the bribe payor is "immaterial."19 Rather, the relevant question when contemplating a bribery prosecution is "whether the government official imparted and exploited a reasonable belief that he had effective influence over the subject of the bribe."20 Accordingly, because it found the trial court's jury instructions to be nothing less than a "fair and accurate statement of the law," the Fourth Circuit affirmed McDonnell's conviction.21 In writing for a unanimous Supreme Court, Chief Justice Roberts rejected the government's position that simply agreeing to meet with someone could be enough to constitute an "official act" that could trigger a corruption conviction, holding, instead, that an "'official act' is a decision or action on a question, matter, cause, suit, proceeding or controversy."22 The Chief Justice explained that such 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."23 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, 34 For The Defense | Vol. 1, Issue 3 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.'"24 The Court noted that "in addition to being inconsistent with both text and precedent, the government's expansive interpretation of "official act" would raise significant constitutional concerns in that it would "cast a pall of potential prosecution" over all actions that public officials take on behalf of their constituents. 25 In light of the Court's interpretation of the term "official act," the Court held that the District Court's jury instructions at McDonnell's trial "lacked important qualifications, rendering them significantly overinclusive."26 First, the jury instructions did not "adequately explain to the jury how to identify the 'question, matter, cause, suit, proceeding or controversy.'"27 The Court explained that the jury should have been instructed that the "question, matter, cause, suit, proceeding or controversy" must involve a "formal exercise of power," as opposed to a "typical meeting, call or event."28 Second, the jury should have been instructed that the "question, matter, cause, suit, proceeding or controversy" must be more specific and focused than a broad policy objective."29 The pertinent "question, matter, cause, suit, proceeding or controversy" must be something specific and focused that is "pending" or "may by law be brought before any public official," such as the question whether to initiate the research studies.30 Third, the District Court should have instructed the jury that to convict McDonnell, it had to "find that he made a decision or took an action - or agreed

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016