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
Contents
For the Defense - Volume 1, Issue 3 - 2016 - 1
For the Defense - Volume 1, Issue 3 - 2016 - 2
For the Defense - Volume 1, Issue 3 - 2016 - Contents
For the Defense - Volume 1, Issue 3 - 2016 - 4
For the Defense - Volume 1, Issue 3 - 2016 - 5
For the Defense - Volume 1, Issue 3 - 2016 - 6
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