Like most defense attorneys, I welcomed the Supreme Court’s decision in the McDonnell case. The Court vacated former Governor McDonnell’s convictions for Hobbs Act extortion and honest services fraud and remanded the case to the Fourth Circuit for further findings.
Instead, I’m going to talk about my favorite sentence in the opinion. Here it is:
[T]he Government’s legal interpretation is not confined to cases involving extravagant gifts or large sums of money, and we cannot construe a criminal statute on the assumption that the Government will “use it responsibly.” United States v. Stevens, 559 U. S. 460, 480 (2010).
First things first, the key part of the decision was the Court’s narrow reading of the phrase “official act.”
In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.”
In narrowing the meaning of official act, of course, the Court limited the cases in which the government can bring these types of public corruption charges.
But, more important, the Court took a swipe at the typical deference afforded federal prosecutors.
The Court said it could not simply defer to the government’s promise to use the statute “responsibly.” The Court cited a case I hadn’t read before, Untied States v. Stevens. (This is not the Ted Stevens case.)
In this not-Ted-Stevens case, the defendant was convicted of selling videos of illegal dog fighting. He challenged his conviction under 8 U.S.C. § 48, which prohibits “knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain.” He argued that the statute was facially unconstitutional under the First Amendment, and the Supreme Court agreed.
The government in Stevens responded that it had used its prosecutorial discretion under this statute responsibly in the past and would do so in the future. The Court didn’t buy it, explaining:
Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, and it “neither has brought nor will bring a prosecution for anything less.” The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. (citations omitted)
This theme is echoed in the McDonnell decision, where the Court rightfully raised a concern about government overreaching to prosecute pretty much anything a public official did.
In addition to being inconsistent with both text and precedent, the Government’s expansive interpretation of “official act” would raise significant constitutional concerns. Section 201 prohibits quid pro quo corruption—the exchange of a thing of value for an “official act.” In the Government’s view, nearly anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and nearly anything a public official does—from arranging a meeting to inviting a guest to an event— counts as a quo.
Criminal defendants are so often at the mercy of “prosecutorial discretion.” Prosecutors have discretion to decide whether to convene a grand jury and the scope of what the grand jury will do. They can decide whether to seek documents by a subpoena or a swarm of FBI agents executing a search warrant. Prosecutors have discretion to decide what to charge in an indictment and who will be indicted. They have discretion to decide if an individual is a witness or a subject or a target. Prosecutors have discretion to offer a non-prosecution agreement or statutory immunity or a plea deal or nothing at all. Prosecutors have the (nearly unfettered) discretion to decide what to constitutes Brady material and how quickly they will turn it over. They have discretion to decide whether to seek a sentence at the high end or low end of the range.
The list goes on and on.
This is a massive amount of discretion. It means prosecutors have near-complete power over people’s lives and livelihoods and over how companies run their businesses.
The courts generally defer to prosecutorial discretion entirely, even when it is being exercised unfairly. This is in part a result of the system itself (which separates the judicial from the executive function) and in part a result of courts not wanting to challenge these subjective decisions.
To see the Supreme Court say that courts should not—and cannot—rely on the government always to act “responsibly” when it exercises its discretion is a very welcome moment indeed.
The system, of course, is set up to permit this discretion and the system wouldn’t work without it. The Court’s statement isn’t going to dismantle how things work, how stacked the system is against a defendant under investigation or under indictment. But maybe this is a step in the right direction.
At a minimum, courts should look critically at how this discretion is being exercised, rather than accepting it blindly. If it’s being exercised fairly, then the government shouldn’t have any problem with it.