Analysis Op-Ed Review

The Intercept v. McDonnell v. United States

One of the great journalistic developments of the last few years is the rise of The Intercept, the self-styled adversarial journal cofounded by Glenn Greenwald, Laura Poitras, and Jeremy Scahill. Founded in the immediate aftermath of Edward Snowden’s NSA leak as an avenue for publication and analysis of those documents, the site has become a relatively fearless and eloquent site for objective reporting and progressive editorials.

But like any media group with an ideological agenda, the temptation for an unsubstantiated stretch to support a general claim is high. A short op-ed at the close of the Supreme Court’s term in late June by staff contributor Jon Schwarz raised my eyebrows for its sharp and sarcastic rhetoric accusing the Court of being self-contradictory and even activist in legitimizing the corrupting role of money in politics. The prevalence of pay-to-play corruption as a talking point in coverage of this election cycle motivates a closer look at both the editorial and the case.

Schwarz’s op-ed is about the official bribery case McDonnell v. United States, which concerns alleged quid pro quo corruption by an elected official with Jonnie Williams, the CEO of some hack tobacco-as-a-pharmaceutical company called Star Scientific. Schwarz is off to the races by his second paragraph (bold emphasis mine, italic emphasis in original):

By overturning the bribery conviction of Bob McDonnell, the former governor of Virginia, the Supreme Court this week just extended its incredible run of decisions driven by the concern that America has too many restrictions on money in politics.

Here “incredible” is likely used simply to rile the reader, but it’s a strong claim to so dismiss the entire decision. Schwarz rightly notes that the opinion was unanimous — only 8-0, since we’re still missing a warm body in Scalia’s old seat — making the “incredible” claim bolder still. And to declare that the decision was “driven by” a concern about the number of restrictions on money in American politics alleges plain judicial activism absent an explicit Constitutional concern — a concern that is unspecified here, and it turns out is unspecified in the opinion, too.

McDonnell v. United States

In fact, the case and the decision were fairly uninteresting except perhaps for the salacious details. I was sardonically tickled by the bribes from CEO Williams at issue, all or virtually all actually arranged by and for ex-Governor McDonnell’s wife, Maureen: a $20,000 shopping spree for gowns and jackets; loans to cover failing Virginia Beach rental investments and the McDonnell’s daughter’s wedding she weaseled; an admiring glance at Williams’s Rolex turning into a gift through her for the Governor after she admitted that “Yes, that would be nice” if Williams’s bought one for him.

And what did the governor do? He did arrange meetings between Williams and both government and University of Virginia officials to talk about researching Star Scientific’s “Anatabloc” tobacco pills for FDA approval. In fact, McDonnell was taking them and thought they might be nice for state employees to relieve tension. The funniest line in Chief Justice John Roberts’s delivery of the unanimous opinion for the Court, after a laundry list of he-said-she-said accusations of who did what and who else knew about it when, is this: “It is undisputed that Virginia’s health plan for state employees does not cover nutritional supplements such as Anatabloc.” Perhaps most scandalously, McDonnell also hosted some reception dinners at the Governor’s Mansion and borrowed Williams’s Ferrari a few times.

But basically everyone testified that the governor never issued any orders or pressured anyone in these meetings, formal receptions included, to make any decisions. In fact, McDonnell’s lawyer explicitly warned Williams in correspondence that they would “need to be careful” with any attempts to encourage the research, and McDonnell testified that not only did he not know about the Virginia Beach loans but he was upset with his wife that she had even asked about them. She has her own corruption appeal pending.

So everyone stinks here, but what’s the bottom line? Basically, the statute controlling corruption of this sort specifically controls “official actions” and a lot of time is spent determining what that phrase means. Please read the opinion yourself — it isn’t long and it’s very straightforward — but the Court rightly chose to limit “official actions” from otherwise encompassing “virtually all of a public servant’s activities” and instead scoped it to specific actions taken in an official capacity. In so doing, the Court found that the instructions to the jury in McDonnell’s case were impermissibly overbroad and reversed the conviction. It even remanded the case back to the appeals court to consider a new trial if they thought they could get a conviction with the new guidance about “official actions,” but federal prosecutors declined the opportunity. So those prosecutors sure weren’t reaching to get a high-profile conviction from the start!

The Intercept v. McDonnell v. United States

Now Jon Schwarz at the Intercept doesn’t like this. He writes that “Williams himself testified that the gifts he gave the McDonnells were ‘a business transaction'” and sarcastically dismisses Roberts’s concern while quoting him that:

If McDonnell’s conviction stood, “officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse” – since presumably all citizens buy their governor’s wife a full length white leather coat and pay for him to go see the Final Four.

But Schwarz should know better. If Congress wanted to set dollar amount thresholds beyond which otherwise ordinary financial interactions between elected officials and constituents become bribes, or declare to be a criminal act the receipt of any thing of value which might appear to a reasonable person to have influenced policy, it could have done so. Instead, the law they did write has a very straightforward interpretation targeting only “official acts” that a unanimous Court found to be compelling. Further, the guidance from the Court could still lead to tons of corruption convictions — the Bondi-Trump case seems like a bumper opportunity — without chilling elected officials to hole up in their mansions for fear of corruption scandals. This is a fact which Roberts himself makes clear while also empathizing with Schwartz on the details in McDonnell:

There is no doubt that this case is distasteful; it may be worse than that. But our 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. 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.

In his closing rhetorical flourish, Schwarz makes perhaps his most damning error:

The Citizens United decision confidently proclaimed that “ingratiation and access” by themselves “are not corruption … The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”

The McDonnell ruling demonstrates the lengths the Supreme Court will go to to prove itself wrong.

But Citizens United was hardly the exemplar of a confident decision. It was a complicated, 183-page, 5-4 decision wherein not a single justice flatly dissented. Instead, Kennedy’s majority opinion was actually joined in part by all nine: Roberts, Scalia, and Alito concurred in whole; Roberts also wrote his own concurrence, joined only by Alito; Scalia also wrote his own concurrence joined by Alito and joined in part by Thomas; Stevens mostly dissented but concurred only with Part VI of Kennedy’s majority opinion, and was joined therewith in whole by Ginsburg, Breyer, and Sotomayor; and Thomas concurred with Kennedy’s majority opinion except with Part VI.

I think the only confident conclusion we can make here is that Thomas just might be an asshole. And not to beat a dead horse, but the McDonnell decision was a unanimous 8-0 decision that in all likelihood would have been a 9-0 decision if either a) Scalia were still alive or b) Garland had been confirmed. Comparing these decisions to make broad assertions about the Supreme Court can only be understood to be either thoughtless or deceptive, and Schwarz’s analysis of McDonnell is otherwise too flawed to be seen as anything but obnoxiously rhetorical. The Intercept promises new heights in online adversarial journalism, but Schwarz’s baiting editorial there undermines the site’s credibility and serves as a good reminder of the need to remain skeptical at all times.

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