It’s
the last day of oral argument for the Term, and the Court has one big case to
deal with: McDonnellv. United States, about whether “official action” under the relevant
federal fraud statutes is limited to exercising actual government power, or
pressuring others to exercise such power, and related questions.
The petitioner, former Virginia governor Robert F. McDonnell, was
convicted of various counts of “honest services” wire fraud, conspiracy to
obtain property of official right, and obtaining property under color of
official right. He was sentenced to twenty-four months in prison, but is free
while this appeal is pending.
And
today, McDonnell was seen slipping in a side door of the Court and is seated in
the second row of the public gallery. On his right is his wife, Maureen, who
was also convicted in the same sensational trial of charges related to dealings
with a businessman who was seeking promotion from the governor’s mansion for a
dietary supplement. Her case is pending on appeal in the U.S. Court of Appeals
for the Fourth Circuit and is not before the justices today.
We’re in no position to assess the current state of the McDonnells’
marriage, which has been strained by the criminal case, but they are together
here today.
On Robert McDonnell’s left is his youngest daughter, Rachel, according
to a couple of Virginia reporters who are near me in the press section. And the
former governor’s sisters, Maureen and Eileen, are here as well, seated in
another row.
As the start of the court session approaches, McDonnell puts his arm
around his daughter, and we are able to see that he is wearing a fairly big
watch on his left wrist. It is not the $6,000 Rolex that the businessman,
Jonnie Williams, bought for McDonnell, as that and other gifts were mostly
returned.
When the Justices take the bench, there are a small number of lawyers to
be admitted to the Supreme Court Bar. One of them is Gail Laster, the wife of
U.S. Solicitor General Donald B. Verrilli, Jr. He makes the introduction of his
wife, and as usually happens in such cases, everyone chuckles when he says he
is satisfied that she has met the necessary qualifications.
Then, it is on to the argument. Noel J. Francisco argues for the former
governor that the federal government’s interpretation of the relevant statutes
is wrong and that “in order to engage in ‘official action,’ an official must
either make a government decision or urge someone else to do so.”
The questioning is active, though the Justices do not seem particularly
hostile to Francisco. There are several of what I have called verbal face-offs,
in which two Justices seek to ask questions at the same time, and one has to
back down. Justice Elena Kagan tries four times to start a question of
Francisco, but she defers to her colleagues before finally getting the floor.
It’s clear the Justices are looking for a limiting principle for when
official action becomes a crime.
Deputy Solicitor General Michael R. Dreeben takes to the lectern for the
United States. He is quickly interrupted by Chief Justice John G. Roberts, Jr.,
who refers to “an extraordinary document” that has been filed on McDonnell’s
side.
He’s referring to an amicus brief submitted by several former
White House counsels (and other high-ranking officials from both Democratic and
Republican administrations) – including, Roberts points out, those who have
served Presidents Barack Obama, George W. Bush, Bill Clinton, and George H.W.
Bush.
“And they say, quoting their brief, that ‘if this decision is upheld, it
will cripple the ability of elected officials to fulfill their role in our
representative democracy,’” Roberts says. “Now, I think it’s extraordinary that
those people agree on anything.”
“It may be extraordinary, Mr. Chief Justice, but that doesn’t make
it correct,” Dreeben responds. “I think it rests on several fundamental
misconceptions about what government actually does.”
Dreeben is tenacious throughout the argument.
When Justice Stephen G. Breyer expresses concern that the kind of
routine courtesies and communications that public officials sometimes make on
behalf of favored constituents might be a “recipe for giving the Department of
Justice and the prosecutors enormous power over elected officials,” Dreeben
says, “I’m going to push back, because I think that the line that
petitioner has urged is one that is a recipe for corruption, not a recipe for
drawing a safe harbor for public officials.”
Throughout the argument, McDonnell keeps a sober and intent look on his
face, only briefly cracking a grin at some of the more humorous moments.
The Justices’ hypotheticals took the lawyers from the fishing hole to
the finest restaurants.
Roberts wondered about a state governor who invites a CEO looking to
build a new plant “down to my … trout stream and we’ll go fishing and we’ll
talk about this.
“And the governor does that,” Roberts says. “He has a nice
day fishing for trout, and they talk about whether they can get tax
credits, deferred taxes if the CEO opens his plant in the state. Now, is
that a felony, because he’s accepted an afternoon of trout fishing, and he
discussed official business at that time?”
No, says Dreeben, but if instead of trout fishing the CEO said “I’ll fly
you out to Hawaii and you and your family can have a vacation,” that would be
different.
Roberts says he thought the size of the “quid” in “quid pro quo” didn’t
matter.
“When you change the trout fishing to a trip to Hawaii, it becomes more
nefarious,” Dreeben says.
Breyer asks Dreeben about a lunch between a government official and a
favor seeker “with the Chteau Lafite” wine.
“That’s worth, like, a thousand dollars, or five hundred, anyway,”
Breyer says. “I don’t go to those restaurants anymore.”
Dreeben continues to get tough questioning from the Chief Justice and
Justices Breyer, Alito, and Kagan.
When Francisco returns to the lectern, Justice Ruth Bader Ginsburg asks
him about Dreeben’s concern, that if they read the statute as Francisco is
urging, “Then every government official can say, ‘You want to have a meeting?
Pay me a thousand dollars.’”
Francisco says that “these broad and vague statutes are not
comprehensive codes of ethical conduct.”
“There are lots of other statutes that would prohibit precisely
what you are suggesting, Justice O’Connor, and you don’t have
to interpret …” he says, quickly realizing his error, as does the entire
Courtroom.
Ginsburg smiles and says, “That hasn’t happened in quite some time.” In
fact, Ginsburg has discussed publicly how in her early years on the Court,
lawyers would all too often confuse her and Justice Sandra Day O’Connor.
Francisco apologizes profusely. “Justice Ginsburg, I am very, very, very
sorry,” he says.
Just as Francisco’s red light comes on, Justice Sonia Sotomayor poses a
question, and Roberts patiently allows the lawyer to answer for several
seconds, but he pounces at the first pause to say, “Thank you, counsel.”
The Chief Justice has one unexpected piece of business.
“Mr. Dreeben, could I invite you to return to the lectern?” Roberts
says. “Our records reflect that this was your one-hundredth oral argument
before the Court. You are the second person to reach that rare milestone this
century.”
“I distinctly recall your first argument in January of 1989,” Roberts
continues. “Throughout your career, you have consistently advocated positions
on behalf of the United States in an exemplary manner. On behalf of the Court,
I extend to you our appreciation for the many years of advocacy and dedicated
service during your tenure in the Solicitor General’s Office and as an officer
of this Court.”
“We look forward to hearing from you many more times,” the Chief Justice
says.
Dreeben’s first argument was in a case called United States v. Halper, a complicated case related to Medicare fraud. The Court largely ruled
against Dreeben and the government by ruling that a penalty under the False
Claims Act, as applied to the individual in the case, violated the Double
Jeopardy Clause (though it remanded the case to a lower court so the government
could address another issue).
Dreeben’s adversary in that first argument was a lawyer who defended the
judgment below at the invitation of the Court. His name was John G.
Roberts, Jr.
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