A skeptical court, declining public trust

Published 7:07 pm Saturday, April 30, 2016

Disgraced former Gov. Bob McDonnell finally got his day in court — the U.S. Supreme Court — on Wednesday, and it may well turn out to be nearly everything he had hoped for.

But for citizens seeking accountability and ethics from their elected officials, the court’s skeptical tone regarding the prosecution that led to McDonnell’s conviction on public corruption charges could well lead to a greater sense of disenchantment with those elected officials than already exists.

The issue before the court on Wednesday was whether federal prosecutors had applied too broad a measure of corruption when they pressed charges against McDonnell for accepting lavish gifts, loans and favors from businessman Jonnie Williams Sr., who was looking for support from state researchers for dietary supplements his company was marketing.

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McDonnell and his wife were both found guilty by a jury in September 2014 of accepting gifts from Williams in exchange for their efforts to help get Williams’ product in front of university researchers. They had received luxury vacations, shopping sprees, loans and other gifts worth more than $170,000 from the businessman. Significantly, Williams never got the research he sought.

The justices seemed to balk over the idea that federal public corruption laws can be used to punish elected officials for using their influence to help constituents. Justice Stephen Breyer, for example, pointed out that constituents often call on government officials to help them navigate the bureaucracy, noting that it would seem odd for such help to rise to the level of “official action” that serves as a trigger for corruption charges.

“Letters go by the dozens to the secretary of HUD, to the secretary of — of — HHS, to the secretary or the assistant secretaries, and they say, ‘My constituent, Smith, has a matter before you that has been pending for 18 months; we would appreciate it if you would review that and take action,’ Breyer posited. “And then the official says to Smith, ‘I did my best on this.’ And Smith thinks, ‘Good, he’s used his influence.’ A crime? My goodness.”

During the government’s presentation of its case, Justice Anthony Kennedy was even more blunt in his skepticism. “If the president gives special access to high-dollar donors to have meetings with government officials, that is a felony?” he asked. If such conduct can be prosecuted, he said, government officials would be put in a position of never knowing how they could act within the law.

There’s a very good chance the court will rule that prosecutors relied on a vague interpretation of “official acts” when choosing to charge the former governor. The tone of the justices’ questions and statements certainly suggests they are uncomfortable with the can of worms they would uncap by upholding the lower court’s and appeals court’s rulings against McDonnell.

Perhaps a ruling in favor of the former governor would, indeed, give some protection to government officials wondering how far they can go in lobbying on behalf of generous constituents.

But such a ruling would remove the protection of citizens from corrupt politicians who, like McDonnell, would use their public positions and power to enrich themselves. That would deal another dangerous blow to the people’s trust in their government.