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Supreme Court Narrows Definition of ‘Official Acts’ in Public Corruption Laws

By Mark Walsh — June 27, 2016 2 min read

Washington

The U.S. Supreme Court, in a case with potential implications for school officials, on Monday made it more difficult for federal prosecutors to win corruption convictions against state and local officials.

The court unanimously threw out the “honest services” fraud conviction of former Virginia Gov. Robert F. McDonnell, a Republican who, with his wife, received some $175,000 in gifts and loans from a businessman seeking state help to advance a nutritional supplement.

The gifts, which included expensive watches and designer clothes, were not illegal by themselves, but McDonnell was prosecuted under federal fraud and extortion laws for setting up meetings on behalf of the businessman. The former governor was convicted and sentenced to two years in prison. His wife, Maureen McDonnell, also was convicted, but her appeal is still pending before a lower court and was not part of Monday’s decision.

Writing in McDonnell v. United States (Case No. 15-474), Chief Justice John G. Roberts Jr. said that the justices reject the federal government’s expansive definition of “official acts” and “adopt a more bounded interpretation of ‘official act.’ Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”

Roberts relied on a 1999 decision of the court, United States v. Sun-Diamond Growers of California, in which the late Justice Antonin Scalia gave three examples of “assuredly” official acts that would not violate the federal fraud statute.

Those were, Scalia had written, “the replica jerseys given by championship sports teams each year during ceremonial White House visits,” “a high school principal’s gift of a school baseball cap to the Secretary of Education, by reason of his office, on the occasion of the latter’s visit to the school,” and “a group of farmers ... providing a complimentary lunch for the Secretary of Agriculture in conjunction with his speech to the farmers concerning various matters of USDA policy.”

Roberts, quoting Sun-Diamond in the new opinion, said, “We recognized that ‘the Secretary of Agriculture always has before him or in prospect matters that affect farmers, just as the President always has before him or in prospect matters that affect college and professional sports, and the Secretary of Education matters that affect high schools.’ But we concluded that the existence of such pending matters was not enough to find that any action related to them constituted an ‘official act.’”

“It is apparent from Sun-Diamond that hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a ‘decision or action’ within the meaning of” the federal fraud statute, “even if the event, meeting, or speech is related to a pending question or matter,” Roberts said. “Instead, something more is required: [the statute] specifies that the public official must make a decision or take an action on that question or matter, or agree to do so.”

Roberts said there was no doubt that the McDonnell saga was “distasteful.”

“But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns,” the chief justice said. “It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this court.”

A version of this news article first appeared in The School Law Blog.

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