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Statutory Interpretation

McDonnell v. United States

 

Most people would assume that giving $175,000 in loans, gifts, and other benefits to a sitting governor while trying to secure his state’s help in launching your business would be unequivocally illegal. Most people would now be wrong, despite thirty-eight states prohibiting the receipt of an equivalent amount in campaign contributions.1×1. See Contribution Limits Overview, Nat’l Conf. St. Legislatures, http://www.ncsl.org/research/elections-and-campaigns/campaign-contribution-limits-overview.aspx [https://perma.cc/KT9L-5XQS]. Last Term, in McDonnell v. United States,2×2. 136 S. Ct. 2355 (2016). the Supreme Court held that the federal bribery statute’s definition of “official act” does not include “arranging a meeting, contacting another public official, or hosting an event” without the presence of something “more.”3×3. Id. at 2367–68. The Court emphasized the consequences of a broader interpretation, but failed to consider existing limitations on federal anticorruption laws and the decision’s potential to further undermine participation in the democratic process by facilitating the appearance of corruption. However, the resulting definition still encompasses pressuring others to take an official action, taking initial steps toward an official action, and giving advice that will form the basis of an official action. These qualifications reduce the likelihood that the decision will hamper future prosecutions.

Robert McDonnell’s campaign for Virginia Governor focused on job growth, and Jonnie Williams thought he could advance that agenda.4×4. See id. at 2361–62. McDonnell’s primary slogan was “Bob’s for Jobs.” Id. at 2361. Williams headed Star Scientific, a Virginia company developing a nutritional supplement called Anatabloc.5×5. Id. at 2362. Star needed research showing the drug’s health benefits, which Virginia’s public universities could perform if they received state grants.6×6. Id. The two men were introduced during McDonnell’s 2009 campaign, and shortly thereafter the businessman asked McDonnell for help.7×7. Id. McDonnell agreed to introduce Williams to Virginia’s Secretary of Health and Human Resources.8×8. Id. A few months later, McDonnell’s wife Maureen suggested Williams sit next to her husband at a rally, and Williams bought her $20,000 worth of designer clothing as thanks.9×9. See id. Over dinner at the governor’s mansion, the three then discussed the proposed studies.10×10. Id.

At the same time, the McDonnells’ longtime money problems became acute.11×11. See id. Mrs. McDonnell told Williams that her husband said, “it’s okay for me to help you . . . but I need you to help me.”12×12. Id. at 2362. Williams consequently gave the McDonnells $65,000.13×13. Id. at 2362–63. Most of the money was a loan, but some helped pay for the wedding of one of the McDonnells’ daughters. Id. The Governor began to set up more meetings for Williams with state agencies, and Williams lent the McDonnells his vacation home and Ferrari.14×14. Id. at 2363. At Mrs. McDonnell’s suggestion, he also purchased the Governor a Rolex.15×15. Id.

In August 2011, Governor McDonnell held a lunch with university researchers to launch Anatabloc.16×16. Id. McDonnell spoke to the researchers about the “scientific validity” of the supplement, “whether or not there was any reason to explore this further,” and if it might “be something good for the Commonwealth.” Id. Afterward, the McDonnells asked for a $50,000 loan, but Williams complained about the lack of progress.17×17. Id. at 2363–64. Mrs. McDonnell emailed the Governor’s counsel to express the Governor’s desire “to get this going,” and Governor McDonnell held another reception for researchers.18×18. Id. at 2364. The money arrived “shortly thereafter,” and the Governor then suggested the inclusion of Anatabloc in the state’s employee healthcare plan to a cabinet secretary and agency head.19×19. Id. Over the next few months, Williams provided McDonnell with a third loan, golf outings, and a vacation.20×20. Id. These gifts came on top of a $10,000 wedding present to a McDonnell daughter. Id.

In January 2014, federal prosecutors indicted the by-then-former Governor.21×21. Id. McDonnell was indicted under several anticorruption statutes. Id. at 2365 (citing 18 U.S.C. § 1014 (2012) (false statement); 18 U.S.C. §§ 1343, 1349 (honest services fraud); 18 U.S.C. § 1951 (Hobbs Act extortion)). Maureen McDonnell “was indicted on similar charges, plus obstructing official proceedings.” Id. The primary charges of honest services fraud and Hobbs Act extortion reflected the government’s belief that Williams bribed McDonnell.22×22. The honest services fraud statute criminalizes “fraudulent schemes to deprive another of honest services through bribes or kickbacks.” Id. at 2365 (citing Skilling v. United States, 561 U.S. 358, 404 (2010)). The Hobbs Act prohibits obtaining property “under color of official right,” 18 U.S.C. § 1951, and the Court has interpreted the statute to encompass “taking a bribe.” McDonnell, 136 S. Ct. at 2365 (citing Evans v. United States, 504 U.S. 255, 260, 269 (1992)). The parties stipulated that terms within both the honest services fraud and Hobbs Act extortion statutes would be defined by reference to a federal statute prohibiting bribery: 18 U.S.C. § 201.23×23. McDonnell, 136 S. Ct. at 2365. Though not referenced by the Court, 18 U.S.C. § 666 also prohibits the bribery of state officials. Most relevant to his ultimate appeal was whether Governor McDonnell had “‘receive[d] or accept[ed] anything of value’ in return for being ‘influenced in the performance of any official act.’”24×24. Id. (quoting 18 U.S.C. § 201(b)(2)). The bribery statute defines an “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”25×25. 18 U.S.C. § 201(a)(3). Prosecutors alleged at least five such acts centered on the meetings and events McDonnell set up for Williams.26×26. McDonnell, 136 S. Ct. at 2365–66.

After trial, the district court gave the government’s proposed jury instruction, which added to the statutory definition the admonition that “official act” included “‘acts that a public official customarily performs,’ including acts ‘in furtherance of longer-term goals’ or ‘in a series of steps to exercise influence or achieve an end.’”27×27. Id. at 2366. The court rejected Governor McDonnell’s suggested qualifications, including that customary duties, “arranging a meeting,” or “hosting a reception” could not — on their own — be official acts.28×28. Id. (quoting United States v. McDonnell, 792 F.3d 478, 513 (4th Cir. 2015)). The court also declined to require that the officeholder intend to “influence a specific official decision the government actually makes.”29×29. Id. (quoting Petition for a Writ of Certiorari app. I at 147a, McDonnell, 136 S. Ct. 2355 (No. 15-474)).

The jury convicted McDonnell on all counts except the false statement charge.30×30. Id. The jury that convicted Governor McDonnell also found Mrs. McDonnell guilty of several corruption-related charges. McDonnell, 792 F.3d at 486 n.1. Her appeal remains pending. McDonnell, 136 S. Ct. at 2367. He appealed on three grounds: that the court had erroneously instructed the jury on what could constitute an “official act,” that the honest services statute and Hobbs Act were unconstitutionally vague, and that the evidence was insufficient.31×31. McDonnell, 136 S. Ct. at 2367. This comment does not discuss elements of McDonnell’s appeal rejected by the Fourth Circuit and not taken up by the Supreme Court. The Fourth Circuit affirmed.32×32. McDonnell, 792 F.3d at 520. The panel rejected McDonnell’s central argument that the district court’s definition of “official act” was too broad, and held that the instruction properly limited the illegal acts to the statutory definition.33×33. Id. at 509.

The Supreme Court reversed. Writing for a unanimous Court, Chief Justice Roberts rejected the government’s contention that the definition of “official act” within § 201(a)(3) included “any decision or action, on any question or matter, that may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity.”34×34. McDonnell, 136 S. Ct. at 2367 (quoting Brief for the United States at 20–21, McDonnell, 136 S. Ct. 2355 (No. 15-474)) (government’s emphasis). Instead, the Court read both “question or matter” and “decision or action” more narrowly.

The Chief Justice first examined the bribery statute’s text. Employing the canon of construction noscitur a sociis — “a word is known by the company it keeps”35×35. Id. at 2368 (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)). The example given by the Court for the past use of this canon is widely reviled for its perversion of the statute. See, e.g., Stephen M. Bainbridge, Securities Act Section 12(2) After the Gustafson Debacle, 50 Bus. Law. 1231, 1231–32 (1995) (describing the decision as “the most poorly-reasoned, blatantly results-driven securities opinion in recent memory”). — the Court found the otherwise broad terms question and matter to be constrained by the statutory phrase’s later reference to a “cause, suit, proceeding, or controversy.”36×36. McDonnell, 136 S. Ct. at 2368. These more specific words all connoted “a formal exercise of government power.” Id. Reading question and matter expansively would also have encompassed these terms, rendering the more specific words superfluous.37×37. Id. at 2369. The Chief Justice’s interpretation, by contrast, excluded most of the meetings, calls, and events in which McDonnell had been involved.38×38. Id. The Court, however, affirmed the Fourth Circuit’s determination that initiating research studies, allocating grant money, and determining whether state health insurance would cover Anatabloc were questions or matters.39×39. Id. at 2369–70. These instances were sufficiently “focused and concrete,” and “involve[d] a formal exercise of governmental power . . . similar in nature to a lawsuit, administrative determination, or hearing.” Id. at 2370.

The opinion next turned to § 201(a)(3)’s requirement of a decision or action. Chief Justice Roberts framed the inquiry as “whether arranging a meeting, contacting another official, or hosting an event” — steps taken by McDonnell — “may qualify as a ‘decision or action’ on a different question or matter.”40×40. Id. at 2369. Relying on United States v. Sun-Diamond Growers of California,41×41. 526 U.S. 398 (1999). Sun-Diamond addressed the related federal prohibition on gratuities. See id. at 400. the Court held that “something more” was required before an “event, meeting, or speech . . . related to a pending question or matter” became a decision or action.42×42. McDonnell, 136 S. Ct. at 2370. The Chief Justice allowed that the “something more” could be taking action or making a decision on “a qualifying step” toward an official act, “using [an] official position to exert pressure on another official to perform an ‘official act,’” or “provid[ing] advice to another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.”43×43. Id. An official need not actually take the agreed-upon action. Id. at 2370–71. The Court thus drew a line between “expressing support” and pressuring another official.44×44. Id. at 2371. The Court found its earlier decision in United States v. Birdsall, 233 U.S. 223 (1914), to comport with the present opinion because the officials there provided advice. McDonnell, 136 S. Ct. at 2371. When preceded by a quid and a pro, the former was politics, the latter a crime.

The Court buttressed this narrow definition of official act with the constitutional concerns raised by Governor McDonnell. Emphasizing the “pall of potential prosecution,” Chief Justice Roberts wrote that “[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.”45×45. McDonnell, 136 S. Ct. at 2372. That “the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm” might feel prevented from making campaign contributions or taking an official “on their annual outing to the ballgame” troubled the Court.46×46. Id. The government’s preferred definition of official act could lead to a regime in which “citizens with legitimate concerns might shrink from participating in democratic discourse.”47×47. Id. A broader interpretation also raised the due process specter of inadequate notice to public officials and their constituents, and the Court found prosecutorial discretion an inadequate safeguard.48×48. Id. at 2372–73. Finally, federalism interests weighed against federal regulation of the conduct of state and local officials.49×49. Id. at 2373. Because the district court’s jury instruction failed to narrow official act to the scope embraced by the Court,50×50. Id. at 2374. The instructions failed to make clear that, without more, a “typical meeting, call, or event” could not be a question or matter under § 201(a)(3), nor could the Governor’s general agenda of economic development be a question or matter. Id. They also did not define decision or action to require intent to pressure or advise. Id. the Court vacated the convictions.51×51. Id. at 2375. In light of the narrowed definition of “official act,” the Court rejected McDonnell’s claim that the honest services statute and the Hobbs Act were unconstitutionally vague. Id. It also declined to address McDonnell’s argument that insufficient evidence existed to convict him, remanding the question. Id.

McDonnell represents the latest victory for the idea that “[t]he appearance of influence or access . . . will not cause the electorate to lose faith in our democracy.”52×52. Citizens United v. FEC, 558 U.S. 310, 360 (2010). The Court acknowledged that Governor McDonnell’s “tawdry tale[] of Ferraris, Rolexes, and ball gowns” was “distasteful,” or even “worse than that.”53×53. McDonnell, 136 S. Ct. at 2375. In spite of this criticism, the decision makes it easier for officeholders to spin their own stories of ill repute. The Court need not have reached this result. By focusing on what constitutes an official act in isolation rather than on the function of the anticorruption statutes more broadly, the Court ignored the limitations it had already placed on prosecutions of constituent service. Nevertheless, the Court’s determination that preliminary steps, pressure, and advice could all constitute decisions or actions under § 201(a)(3) will reduce the practical impact of the case in future public-corruption prosecutions. More damaging will be the continued erosion of public confidence in elected officials and that loss’s effect on participation in the democratic process — the very value the Court sought to protect.

The Court’s opinion evaluates the definition of “official act” as though it were the sole limitation on the sweep of the anticorruption regime. Each of the three statutes the decision used in defining that regime, however, contains additional elements that further narrow its scope. First, within the anticorruption context, the Hobbs Act prohibits only “obtaining a ‘thing of value . . . knowing that the thing of value was given in return for official action.’”54×54. Id. at 2365 (quoting United States v. McDonnell, 792 F.3d 478, 505 (4th Cir. 2015) (alteration in original)). This prohibition stems from the Court’s interpretation of extortion carried out “under color of official right” in 18 U.S.C. § 1951(b)(2). The statutes reviewed in this comment also prohibit other behavior, but the prosecution relied on only the provisions discussed here. Id. The person accepting that to which he is not entitled must know it was given in return for specific official acts,55×55. Evans v. United States, 504 U.S. 255, 268 (1992). though the explicitness of the quid pro quo depends on whether campaign contributions constitute the thing of value.56×56. See, e.g., United States v. Ganim, 510 F.3d 134, 143 (2d Cir. 2007) (Sotomayor, J.) (explaining that when the thing of value is not a campaign contribution, a quid pro quo is still required, but “the agreement may be implied from the official’s words and actions”); United States v. Giles, 246 F.3d 966, 972–73 (7th Cir. 2001) (requiring at least an implied quid pro quo); United States v. Collins, 78 F.3d 1021, 1035 (6th Cir. 1996) (holding a quid pro quo to be necessary even outside of campaign contribution cases). The sort of “generalized goodwill” engendered by a lunch or normal political interaction not tied to an exchange does not rise to a violation.57×57. See Ganim, 510 F.3d at 149. In the labor union hypothetical posed by the Court,58×58. McDonnell, 136 S. Ct. at 2372 (mentioning a “union [that] had given a campaign contribution in the past”). At oral argument, the Justices frequently conflated campaign contributions and other things of value. See, e.g., Transcript of Oral Argument at 30–31, McDonnell, 136 S. Ct. 2355 (No. 15-474), https://www.supremecourt.gov/oral_arguments/argument_transcripts/15-474_1bn2.pdf [https://perma.cc/EV4G-RMGL] (referring to “high-dollar donors”). the exacting standard for when a campaign contribution becomes a bribe would require “an explicit promise or undertaking by the official” whereby “the official asserts that his official conduct will be controlled by the terms of the promise or undertaking.”59×59. McCormick v. United States, 500 U.S. 257, 273 (1991). Though Evans v. United States, 504 U.S. 255, is less clear about the required agreement, most courts of appeals have reconciled the cases by holding that McCormick’s demand of an explicit agreement applies only in the campaign contribution context. See, e.g., Ganim, 510 F.3d at 143. The precise form of the required agreement continues to produce variation among the lower courts, but all require an agreement in the campaign contribution context to be at least as clear as the quid pro quo necessary when dealing with other things of value. See, e.g., United States v. McGregor, 879 F. Supp. 2d 1308, 1314–19 (M.D. Ala. 2012) (collecting cases and observing that “[i]mprecise diction has caused considerable confusion over the scope of federal corruption laws as applied to campaign contributions,” id. at 1319). The terms of the quid pro quo in such a case must be “clear and unambiguous.”60×60. See United States v. Carpenter, 961 F.2d 824, 827 (9th Cir. 1992); see also Ganim, 510 F.3d at 142 (requiring an “express promise”); United States v. Tomblin, 46 F.3d 1369, 1381 (5th Cir. 1995) (quoting Carpenter, 961 F.2d at 827). But see United States v. Hairston, 46 F.3d 361, 365 (4th Cir. 1995) (describing the quid pro quo requirement as “not onerous”).

The honest services fraud statute contains similarly restrictive limitations after Skilling v. United States,61×61. 561 U.S. 358 (2010). which had already dramatically narrowed the scope of federal anticorruption law by interpreting the statute to prohibit only “fraudulent schemes to deprive another of honest services through bribes or kickbacks.”62×62. Id. at 404; cf. Andrew M. Stengel, Albany’s Decade of Corruption: Public Integrity Enforcement After Skilling v. United States, New York’s Dormant Honest Services Fraud Statute, and Remedial Criminal Law Reform, 76 Alb. L. Rev. 1357, 1358 (2013) (describing Skilling as “upending nearly twenty-five years of public corruption prosecutions” through its narrowing of honest services fraud). That case emphatically dismissed the constitutional concerns regarding fair notice and arbitrary prosecutions later presented in McDonnell, holding that the statute “does not present a problem on either score.”63×63. Skilling, 561 U.S. at 412. Compare id. at 412–13, with McDonnell, 136 S. Ct. at 2372. The statute’s mens rea requirement precluded officeholders from somehow being duped into committing a crime, and the interlocking restrictions of the anticorruption statutes left “no significant risk” of arbitrary prosecutions.64×64. Skilling, 561 U.S. at 412. McDonnell’s discussion of the potential breadth of the statutory regime never reckoned with Skilling’s resolution of these arguments.65×65. Id. Whether Skilling requires an explicit quid pro quo — which would only further restrict the statute — remains less clear. See, e.g., Brian H. Connor, Comment, The Quid Pro Quo Quark: Unstable Elementary Particle of Honest Services Fraud, 65 Cath. U. L. Rev. 335, 356–57 (2015) (comparing post-Skilling approaches to honest services fraud across circuits). At least the Second Circuit has held a quid pro quo to be “an essential element” of honest services fraud when prosecutors base the charge on bribery. United States v. Bruno, 661 F.3d 733, 743 (2d Cir. 2011) (citing Ganim, 510 F.3d at 148–49). In any event, the parties in McDonnell stipulated to the quid pro quo requirement. See United States v. McDonnell, 792 F.3d 478, 505 (4th Cir. 2015).

Finally, the federal bribery statute considered by the Court also criminalizes only a narrow swath of behavior. In relevant part, § 201 lays out the five parts of a bribe: (1) a public official (2) with corrupt intent (3) receives a benefit (4) given with the intent to influence (5) an official act.66×66. Daniel H. Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L. Rev. 784, 795–96, 795 n.39 (1985). These elements distill the verbose statute. See 18 U.S.C. § 201(b)(2) (2012) (making it a crime to be a public official who “directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value . . . in return for . . . being influenced in the performance of any official act”). The Court explored the fifth element, but — just as with the honest services fraud statute — the two intent requirements further limit the law. Indeed, requiring “corrupt intent” prevents from becoming criminal the sort of innocuous exchanges repeatedly posited by the Court.67×67. See Brennan T. Hughes, The Crucial “Corrupt Intent” Element in Federal Bribery Laws, 51 Cal. W. L. Rev. 25, 26 (2014). Prosecutors must demonstrate that an official “saw a normative stop sign of some sort, whether social or legal, and chose to proceed on past it.”68×68. Samuel W. Buell, Culpability and Modern Crime, 103 Geo. L.J. 547, 568 (2015). Though the exact contours of the element remain disputed,69×69. Compare United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998) (equating “corrupt intent” to a quid pro quo), with United States v. Strand, 574 F.2d 993, 996 (9th Cir. 1978) (“An act is ‘corruptly’ done, if done voluntarily and intentionally, and with the bad purpose of accomplishing either an unlawful end or result, or a lawful end or result by some unlawful method or means.”). it prevents the rightly responsive representative from wandering into receiving bribes.70×70. See Lowenstein, supra note 66, at 798–99. Constituents are similarly protected because the giver must also specifically intend to exchange benefits for acts.71×71. United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404–05 (1999). The contention that without a narrow definition of official act prosecutors could bring charges when “homeowners” ask an “official to join them on their annual outing to the ballgame” and are told “why it took five days to restore power . . . after a storm,” McDonnell, 136 S. Ct. at 2372, thus fails to reckon with this element. The Court’s repeated citations to Sun-Diamond ignore this aspect of the statute, despite that decision having characterized it as a “distinguishing feature” of the law’s reach.72×72. 526 U.S. at 404–05 (distinguishing bribes from illegal gratuities).

Given the robust protections the additional elements of these three statutes provide against vagueness, prosecutorial abuse, and the criminalization of routine constituent service, the Court’s overarching focus on the quo — as if that element alone delineated politics from bribes — confounds.73×73. See Transcript of Oral Argument, supra note 58, at 30 (Chief Justice Roberts: “So is your answer, yes, that that’s a felony?”; Deputy Solicitor General Dreeben: “If somebody pays me —”; Chief Justice Roberts: “No, no. That’s the quid — that’s the quid side of it.”); see also McDonnell, 136 S. Ct. at 2370 (noting that the Court could “avoid the ‘absurdities’ of convicting individuals on corruption charges for engaging in” constituent service “by adopting a more limited definition of ‘official acts’”) (quoting Sun-Diamond, 526 U.S. at 408). The Court’s approach becomes even more puzzling in light of the policy and constitutional arguments supporting a broader definition of corruption. These justifications likely surpass the magnitude of the downsides envisioned by the Chief Justice. While McDonnell ultimately accepts that money should be able to buy access and influence, by most measures, citizens disagree. More than three-quarters of all Americans believe that the role of money in politics continues to grow.74×74. See Pew Research Ctr., Beyond Distrust: How Americans View Their Government 72 (2015), http://www.people-press.org/files/2015/11/11-23-2015-Governance-release.pdf [https://perma.cc/7GC6-X9SZ]. Less than a third believe that elected officials are honest.75×75. See id. at 75. It may well be that “[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.”76×76. McDonnell, 136 S. Ct. at 2372. But when it comes to the “[i]ngratiation and access” constitutionalized by the Roberts Court,77×77. Citizens United v. FEC, 558 U.S. 310, 360 (2010); see also Laurence H. Tribe, Dividing Citizens United: The Case v. the Controversy, 30 Const. Comment. 463, 463 (2015) (describing “a bizarrely cramped and naïve vision of political corruption and improper influence in the electoral process” as “characteristic of [the] Roberts Court”). “the public reads the money as corruption.”78×78. Lawrence Lessig, Republic, Lost: How Money Corrupts Congress — And a Plan to Stop It 88 (2011). Having become pervasive,79×79. See Ronald Dworkin, The Curse of American Politics, N.Y. Rev. Books (Oct. 17, 1996), http://www.nybooks.com/articles/1996/10/17/the-curse-of-american-politics [https://perma.cc/3PRU-9Q57] (“The power of money in our politics, long a scandal, has now become a disaster.”); see also Fred Wertheimer & Susan Weiss Manes, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy, 94 Colum. L. Rev. 1126, 1126 (1994) (describing “influence-seeking money” as “a pervasive force”). this money threatens the representative compact.80×80. See Lessig, supra note 78, at 8–9; see also FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 507 (2007) (Souter, J., dissenting) (noting “pervasive public cynicism” resulting from the increased role of money in politics). Individuals unable to give tens of thousands of dollars may feel voiceless, “lose confidence in the political system and become less willing to participate in the political process.”81×81. Stephen Breyer, Active Liberty 44–45 (2006). The perception that cash buys representation creates “a world where the vast majority of us disengage”82×82. Lessig, supra note 78, at 169. Some contest this relationship between the perception of corruption and participation in the political process. See generally William J. Rinner, Note, Maximizing Participation Through Campaign Finance Regulation: A Cap and Trade Mechanism for Political Money, 119 Yale L.J. 1060, 1082–83 (2010) (reviewing literature disputing that the appearance of corruption reduces democratic engagement). Indeed, several 2016 presidential campaigns effectively mobilized voters with critiques of the role of money in politics. Engagement during presidential elections, though, may not reflect participation more broadly. Cf. Christopher S. Elmendorf & David Schleicher, Informing Consent: Voter Ignorance, Political Parties, and Election Law, 2013 U. Ill. L. Rev. 363, 384 (critiquing broad conclusions about voter behavior drawn from studies of national politics). — precisely the problem the Chief Justice concluded a broad definition of official act would engender.83×83. McDonnell, 136 S. Ct. at 2372.

Still, the Court’s qualification of what constitutes a decision or action on an official act under the control of another government official will likely mitigate the effect of a narrower definition of “official act.” Chief Justice Roberts described three situations in which a jury might yet find criminal activity: (1) the taking of “a decision or action on a qualifying step” toward an official action; (2) the using of an “official position to exert pressure on another official to perform an ‘official act,’”; and (3) the giving of “advice to another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.”84×84. Id. at 2370. That Governor McDonnell’s behavior likely fell into all three categories demonstrates their pliability. By choosing which company representatives to invite to meetings in which grant proposals were discussed, he may have been “narrowing down the list of potential research topics.”85×85. Id. Though the decision often discusses actually taking actions, id., the statutes require only an agreement to perform them, see, e.g., Evans v. United States, 504 U.S. 255, 268 (1992) (holding that “fulfillment of the quid pro quo is not an element” of a Hobbs Act violation). Prosecutors might also reframe meetings, calls, and events as circumstantial evidence of an agreement regarding other official acts. His subordinates at the state universities seem to have “perceived that he was trying to influence them.”86×86. Transcript of Oral Argument, supra note 58, at 8; accord McDonnell, 136 S. Ct. at 2366 (noting a subordinate’s perception of pressure). He arguably gave advice to state officials when he suggested that Anatabloc “would be good for . . . state employees.”87×87. United States v. McDonnell, 792 F.3d 478, 517 (4th Cir. 2015). Furthermore, throughout every interaction, his position as “Chief Executive of the Commonwealth” gave his assertions additional “credibility” and force,88×88. Id. at 516. offering a jury ample grounds to infer pressure.89×89. Simply put, subordinates are heavily influenced by the preferences of their superiors. Known as “obedience pressures,” the impact on subordinates’ decisionmaking within a hierarchical system — like government — can be significant. See Sung Hui Kim, The Banality of Fraud: Re-Situating the Inside Counsel as Gatekeeper, 74 Fordham L. Rev. 983, 1004 (2005); Lee Ross & Donna Shestowsky, Contemporary Psychology’s Challenges to Legal Theory and Practice, 97 Nw. U. L. Rev. 1081, 1096–97 (2003).

After McDonnell, lower courts and the Department of Justice retain the power to reframe prosecutions based on theories of access and influence — like Governor McDonnell’s — as cases in which officials used their offices to pressure subordinates, offer advice, or take initial steps somewhat attenuated from the ultimate official action.90×90. That prosecutors can reframe cases in this way does not mean that they will. Compare Matt Zapotosky, U.S. Attorney’s Office Recommends Putting Robert McDonnell on Trial Again, Wash. Post (Sept. 2, 2016), https://www.washingtonpost.com/world/national-security/us-attorneys-office-recommends-putting-robert-mcdonnell-on-trial-again/2016/09/02/3ea3eff0-6fb8-11e6-8533-6b0b0ded0253_story.html [https://perma.cc/CH98-GMHG], with Alan Blinder, U.S. Ends Corruption Case Against Former Virginia Governor, N.Y. Times (Sept. 8, 2016), http://www.nytimes.com/2016/09/09/us/us-ends-corruption-case-against-former-virginia-governor.html [https://perma.cc/RR2D-Y3NR]. Given these qualifications, McDonnell may best be understood as revising jury instructions rather than rewriting what constitutes corruption itself. Regardless of how prosecutors and judges eventually respond, citizens already perceive the pay-to-play rhetoric of the Court as reason enough to “shrink from participating in democratic discourse.”91×91. McDonnell, 136 S. Ct. at 2372. Reversing that trend will require more than creative prosecutions.