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Is Public Corruption Still a Crime? The Effect of McDonnell Narrowing Test

Published onJun 30, 2022
Is Public Corruption Still a Crime? The Effect of McDonnell Narrowing Test
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Abstract

The Supreme Court has been limiting the types of public corruption crimes since the 1990s. In 2016, the Supreme Court found that the jury instructions defined official acts too broadly and narrowed its definition significantly in McDonnell v. U.S. The Court created a two-part test to differentiate acts to help one’s constituency versus acts to help oneself because the Court was concerned with the criminalization of politics. From the ruling to March 2019, the federal courts have cited the McDonnell ruling in 151 decisions. These cases were collected and examined using context analysis to understand (in)actions of public officials that underlie the convictions and whether these actions were now considered not illegal under the narrowing of the definition. The cases in which the court distinguished the situation from McDonnell are also discussed. Implications for prosecutorial decision-making and public perception of corrupt acts are discussed.

Keywords – public corruption, public officials, bribery, rule of law


Justice Brandeis, in his famous dissent, forewarned that the government would lose its legitimacy if those in power were not held accountable to the same rules as the public (Olmstead v. U.S., 1928). In the last decade, judicial interpretations of key statutes used in public corruption cases have significantly narrowed the types of corrupt behavior for which public officials can be held criminally accountable under federal law (Kelly v. U.S., 2020; McDonnell v. U.S., 2016; Skilling v. U.S., 2010; U.S. v. Sun Diamond, 1999). Public confidence in the court has fallen steeply in the last year to its lowest in 50 years (Jones, 2022). While the recent decisions on abortion and other controversial decisions have eroded its legitimacy, the slide downward has been occurring for over a decade. Some have theorized that the rise of Trump was the culmination of this lack of trust in government (Hetherington, 2015).

Literature Review on Public Corruption

Public corruption has been recognized as undermining democracies and the rule of law (Kubbe & Engelbert, 2018). The generally accepted definition of public corruption includes the abuse of one’s authority, derived from a public appointment, election, or funding, resulting in a private gain rather than a public good (Rose-Ackerman & Palikfa, 2016; Transparency International [TI], 2017). Holding public officials accountable for such behavior is an essential function of legal institutions from investigators, prosecutors, and the courts; however, doing so has become more difficult in the United States (Artello & Albanese, 2019a; 2019b).

The United States does not have a criminal law called public corruption. Instead, in the last 30 years, about 10 different statutes are used to prosecute illegal behaviors by public officials in nearly two-thirds of all federal prosecutions (Albanese & Artello, 2019). These 10 statutes address the commonly known corrupt actions of bribery, extortion, theft, and fraud behaviors. In Table 1, relevant statutes used and language in public corruption cases are set out and include the year enacted.

Table 1

Statutes Discussed in Corruption Cases

Statute /Year

Title /Relevant Statute Language

18 USC §201 (1962)

Bribery of public officials and witnesses

Directly or indirectly, provides, offers, or gives something of value to public official with the intent to influence public action or inaction, or to commit any fraud on U.S.

18 USC §666 (1984)

Theft or bribery in programs receiving Fed funds

Embezzlement, kickbacks, theft of government property or funds by government official

18 USC §1951 (1948)

Interference with commerce by threats or violence--Hobbs Act

The term “extortion” means obtaining of property from another, with consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

18 USC §1001 (1948)

Statements or entries generally

Making fraud/false statements or entries generally to government officials

18 USC §641 (1948)

Public money, property, or records

embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys, or disposes of any record, voucher, money, or thing of value owned by the United States

18 USC §1341 (1948)

Mail Fraud - Frauds and swindles

any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use…through mail

18 USC §371 (1948)

Conspiracy to commit offense or to defraud US

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose,

18 USC §287 (1948)

False, fictitious, or fraudulent claims

any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent,

18 USC §1343 (1952)

Fraud by wire, radio, or television

any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits, or causes to be transmitted by means of wire, radio, or television

18 USC §1962 (1970)

RICO - prohibited activities

received any income derived, directly or indirectly, from a pattern of racketeering activity (bribery, extortion, or robbery),…the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

18 USC §1346 (1988)

Honest Service Fraud-Definition of “scheme or artifice to defraud”

scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services (has been used less since Skilling ruling)

Sources: Statutes and language retrieved from United States Code based on cases and research

While honest service fraud is not in the top 10 statutes used (Albanese & Artello, 2019), it was enacted to protect the public from self-serving individuals who hold a position of trust in government or the private sector, although Skilling v. U.S. (2010) has limited its use to only bribery and kickbacks. One of the most recent cases to define how public corruption can and cannot be defined and prosecuted was the 2016 case of McDonnell v. U.S.

McDonnell v. U.S. (2016) Summary

The unanimous decision by the Supreme Court in McDonnell v. U.S. stunned some in June 2016 (Roberts, 2018). This case arose when Bob McDonnell, the governor of Virginia from 2009-2013, and his family accepted gifts, trips, and loans totaling $175,000 from Jonnie Williams, a Virginia businessman. Williams, CEO of Star Scientific, a nutritional supplement company, wanted the state to cover the costs of research on a supplement his company developed, Anatabloc. He wanted the research to be conducted by public universities through a grant from Virginia Tobacco Commission which would provide support for an application to the Food and Drug Administration for the use of the supplement as an anti-inflammatory drug (McDonnell v. U.S. 2016).

McDonnell and his wife, Maureen, were convicted for violating the honest-services wire fraud (18 USC 201; 1349; 1343) and for obtaining property under color of official right (18 USC 1951). The Supreme Court overturned the convictions and remanded them for a new trial because the jury instructions were too broad in relation to acting in one’s official capacity. The Court defined an official act under 18 USC §201 (Bribery of public officials), as one in which a public official specifically exercises a formal governmental power on a question, matter, cause, suit, proceeding, or controversy. Consequently, the government must: 1) identify a specific matter that may at some time come before the official, and 2) delineate the particular acts taken that go beyond the typical constituent services provided by representatives (e.g., making phone calls, setting up meetings, or meeting with constituents) (McDonnell v. U.S., 2016). The prosecutors declined to retry the Governor (Wheeler, 2016).

In the McDonnell ruling, the Court appears to allow public officials to accept gifts and bribes if they do not act in their official capacity. The Justices, of which not one justice has run for office or held public office, ignore the appearance of condoning corrupt actions through their repeated rulings that narrow corrupt behaviors to the simplest of analysis: a quid pro quo for tangible items of money or property. Nevertheless, even those caveats are now in question with the McDonnell ruling. From this ruling, it can be concluded that a public official may accept gifts and not be culpable under federal law as long as they do not take official action or avoid any official duties in favor of the gifter. Paying for access to one’s elected representative appears to be condoned in this ruling. Critics decried that bribery offenses will not be prosecuted anymore (Sorkin, 2016; Toobin, 2016). Others welcomed the ruling to clarify what is corrupt and what is “in the normal business of democracy” (Anonymous, 2016, para 9) and to take the politics out of corruption prosecutions (Will, 2016).

At this point, it is unclear what the impact of McDonnell has been because public corruption prosecutions have been declining in this century (Albanese et al., 2019; Albanese & Artello, 2019). This article explores how the McDonnell ruling impacts prior convictions, how the courts apply the test, and how the court characterizes the actions under the new test. Using lower court rulings from 2016 to March 2019, this article examines their opinions for their application of the narrowed definition to ascertain whether prior illegal actions have become legal and to discover how the court characterizes these behaviors.

In McDonnell v. U.S. (2016), the Court centered its analysis around the bribery statute, 18 USC § 201. In 1962, Congress enacted sweeping changes to a set of statutes to combat actual and perceived corruption of government officials. President Kennedy remarked that the public’s confidence is paramount to a thriving democracy. This statute played a role in maintaining the public’s trust in their elected representatives to work on their behalf and not to enrich themselves at the public’s expense (Welch, 1989). Under 18 USC § 201 (b) (1), it is illegal to offer, give or promise a public official something of value to influence or omit any official acts from occurring. Under 18 USC § 201 (b) (2), it is illegal for the public official to ask, seek, demand, or accept something of value to commit an official act or omit to commit an official act. In the last 60 years, the Court has narrowed the interpretation and application of 18 USC § 201(b) but in the McDonnell case the Court instituted a two-step test and excluded non-monetary gifts as “something of value” to prove bribery. While other statutes have been used, this article focuses on the use or non-use of 18 USC § 201 as it relates to public officials and bribery.

In the last two decades, public corruption prosecutions have been declining (Albanese et al., 2019; Albanese & Artello, 2019). Research has been exploring the reasons why this trend is occurring. One study found that investigative resources into public corruption appear to have been moved towards immigration in the last two decades (Artello & Albanese, 2019b). Another study explored the political influences impacting prosecutions for public corruption cases in politically important states (Pavlik, 2017). In that study, those states that saw an increase in public corruption convictions were the ones that were important during a presidential election. However, other research has not found any significant differences based on political parties in the executive branch (Gordon, 2009). Another study found that some U.S. Attorneys targeted Democrats under the Bush Administration, but both Clinton and Bush pursued cases against Democrats at state and local levels (Gordon 2009). Lastly, a recent study examined prosecutorial decision-making regarding public corruption cases and found that they decline to prosecute two-thirds of the time, the most of any type of case (Artello & Albanese, 2019a). They also found that prosecutors consider the likelihood of success, fairness in the proceedings, and future impact of these cases (Artello & Albanese, 2019a).

Part of the calculation about moving forward on prosecutions includes considering recent changes in standards set out by the Supreme Court. Over the last thirty years, the Supreme Court has been narrowing the permissible prosecution theories relating to public officials’ conduct. In U.S. v. Sun Diamond Growers of California (1999), the Court held that the government must directly link the alleged bribe to a specific official act or influence a specific official act. In other words, the government must set out a specific quid pro quo for bribery, e.g., the criminal intent is to influence or to be influenced concerning an official act. Following this ruling, the Court has continued to narrow certain suspiciously corrupt-like behaviors in Skilling v. U.S. and McDonnell v. U.S. In Skilling v. U.S. (2010), the Court held that the honest services fraud statute, 18 USC §1346 only applied to bribery and kickback schemes and rejected the interpretation to include cases where an employee in public service or private corporation does not disclose self-dealing activities that may run contrary to the individual’s fiduciary duties. In other words, the Court had again interpreted corruption capable of prosecution to be only bribery and kickback schemes.

Less than 5 years after McDonnell, the Court in another unanimous decision overturned the convictions of Bridget Anne Kelly and William Baroni under 18 USC §1343 (wire fraud) because they did not have money or property as the object of their fraud (Kelly v. U.S., 2020). The Court agreed that Kelly and Baroni acted with bad faith to close two lanes of traffic in retaliation against Fort Lee’s mayor because the mayor did not support Governor Christie’s reelection. While Court and the defendants acknowledged that the closure of the lanes was an abuse of power, the Court reasoned that “not every act by state or local officials is a federal crime” (Kelly v. U.S., 2020, p. 13). In Kelly, the Court has made the use of one’s regulatory power to retaliate against others is not a violation of federal law if securing or receiving property and/or money are not the objective of the fraud.

Over the last decade, particularly, the Court has created a line for corruption prosecutions. If one is not gaining financially directly, any abuse of power does not have any criminal consequences under federal law (Cordis & Milyo, 2016). As Brandeis warned in Olmstead v. U.S. (1928), the rule of law loses its meaning when those with the power to uphold it choose not to do so and, in fact, break it, especially without any consequences. To understand the trajectory of these cases and their impacts, the article evaluates how the courts use or do not use the McDonnell test. Additionally, this article examines the lines drawn in these cases to see the new boundaries of unethical but lawful behaviors. In this examination, it is also essential to see how the lower courts characterized these behaviors as they are closer to the impact of these public officials in their communities.

Methods

Qualitative methods were used to examine the analysis of lower court rulings where they used McDonnell as a precedent to determine if and which actions are now considered legal under the new test concerning actions in one’s official capacity. In particular, the research questions to be addressed in this article are:

  1. How many and what types of actions considered illegal by a conviction or guilty plea were now deemed legal following the narrowing of the “in one’s official capacity” test under McDonnell?

  2. How does the court characterize these types of changes and the underlying behaviors?

Data Collection and Sample Characteristics

Using the Westlaw database, a search for all cases citing McDonnell as precedent found 151 cases from June 2016 to March 2019. The cases were uploaded into MaxQDA, a computer assisted qualitative data analysis software, to assist in the coding process. The court’s reasoning was coded to analyze the McDonnell test regarding public officials acting in their official capacity. The first analysis read cases to see how the McDonnell ruling was used. In particular, the initial coding sorted the cases into two categories: elected, appointed, or hired public official or officer involved or not (Wertz et al., 2011). Those cases that did not involve public officials or employees would be excluded as the test would not be discussed. Of the original 151 cases, a little over a quarter (n=43) did not have a public official or employee involved resulting in a sample of 108 cases.

Among the cases included (n=108), the cases included a situation where at least one public official, e.g., someone who was elected, appointed, or hired to work for the government being paid through a government salary, had been involved or attempted to be involved (e.g., received a bribery offer, but may not have been charged). From the analysis, different public officials (n=108) were identified across the government’s three levels, as seen in Table 2.

Table 2

Official by Level of Government in included cases

Government Level

Number

Percent

Federal

26

24%

State

39

36%

Local

43

40%

Total

108

100%

Source: Analysis of Westlaw cases citing McDonnell v. U.S. through March 31, 2019.

This sample is consistent with recent findings regarding who is prosecuted for public corruption crimes by the federal government in that most prosecutions focus on corruption at the state and local levels (see Albanese & Artello, 2018; Albanese et al., 2019). Some cases had more than one opinion included because of different levels of review and different types of motions. Table 3 sets out the jurisdiction and court decision level for all included cases. The majority of the cases were decided at the federal district court level, and only two were in state courts, which is consistent with prior research (see Albanese & Artello, 2018; Albanese et al., 2019; Cordis & Milyo, 2016). The district court rulings provide the detailing of facts underlying the conviction or plea to justify their decisions.

Table 3

Court Level by Included Cases

Court Decision Level

Number

Percent

Court of Appeals

30

28%

District Court

76

70%

State Courts

2

2%

Total

108

100%

Source: Analysis of Westlaw cases citing McDonnell v. U.S. until March 31, 2019

Data Analysis Process

Once the initial reading was completed, a second sorting places the cases into three categories: public actions stand as still illegal (n=91, 84.3%), public actions now considered legal that had been illegal (n=4, 3.7%), and acts by public officials considered outside of the McDonnell test (n=13, 12%). Using context analysis, cases that used McDonnell test and were found to be legal now (n=4) were examined in depth to identify any themes and patterns among the cases where the court applied the new test and found the acts now legal or no longer criminal in nature (Cresswell & Poth, 2018). The defendants’ actions and behaviors were delineated to be compared to each other and to the cases found to be outside of McDonnell test. In these cases, multiple situations were raised as grounds to support a criminal conviction for corrupt acts usually under 18 USC §201 (Bribery of public officials) or 18 USC §666 (bribery in programs receiving Fed funds). Therefore, the cases were examined to see how the test was applied to the actions and what the reasons were underlying the court’s reasoning to reverse the conviction or guilty plea. It is through this deeper analysis that the court’s characterizing of the public acts is hoped to be understood (Wertz et al., 2011).

The second set of cases (n=13) included those where the court stated it would not apply the test. In this secondary coding, the defendants, their actions, and the circumstances were explored to see any themes or patterns that emerged from the discourse about these cases (Cresswell & Poth, 2018). Notably, the discourse was examined to see how the courts distinguished these cases from the others. In other words, the cases would show the limits of this new test concerning public officials and their actions. Once these decisions (n=13) that lie outside of the McDonnell test were identified, a third contextual coding was completed that examined the factual pattern underlying the prosecution, the arguments used by both sides, and the court’s reasoning for its decision (Hall & Wright, 2008). Additional research was completed to ascertain the McDonnell ruling’s impact on the case and sentences through newspaper reports and other legal documents where available.

Findings

The results have been split into two sections to address the research questions. The quantitative results will show the extent of McDonnell’s impact, if any, on reviewed cases. This section primarily addresses the first part of the first question. The qualitative section will dive deeper into two subsets—the reversed cases and the cases found not applicable under McDonnell. This section addresses the remainder of the first and second research questions to examine how courts characterize the overturning of convictions or guilty pleas and how the court distinguishes the cases that fall outside the McDonnell test from those that apply it.

Quantitative Results

After reviewing the cases (n=151), nearly a third of the cases (n=43) were excluded as the cases did not address any public corruption activities. These cases cited the McDonnell’s ruling primarily concerning the narrow interpretation of statutes and did not address any actions construed as in one’s official capacity. Consequently, the sample consisted of 108 cases related to public officials, e.g., elected, appointed, or hired, and the defendants asserted the McDonnell test as justification for reversing their cases. Chart 1 sets out the remaining cases according to the use and consequence of the test. The McDonnell test was used in 88 % (n=95 cases). When the test was applied, the court upheld that public corruption still occurred even under McDonnell’s more narrowed definition of official capacity in 96% of the cases. Only in 4 cases did the courts find that the actions would no longer be considered illegal, support a criminal conviction, or guilty plea.

In other words, 96% of the cases remain corrupt and illegal actions under the rule of law even with applying the narrower test. When the McDonnell test was not used, all convictions and guilty pleas were affirmed.

The courts only found two cases where the conviction and guilty plea was to be reversed based on the narrowing of official acts under McDonnell (U.S. v. Tavares, 2016; U.S. v. Jackson, 2019). In another case, the court found only a few instances (n=2) where acts that had substantiated convictions under 18 U.S.C. §201 were now legal and would impact sentencing (U.S. v. Jefferson, 2017). In one case, the underlying actions were but a few among many and did not impact sentencing because other actions were still illegal under each of the schemes (Dimora v. U.S., 2018).

Qualitative Results

In this section, the case facts and underlying actions will be set out. The courts’ reasonings for the rulings are examined to see how the court characterized the actions. Additionally, the rulings are examined to see how the court finds the facts similar or distinguishes the ruling from McDonnell as appropriate.

Reversed Convictions

Out of 95 cases using the McDonnell test, only in U.S. v. Tavares (2016) did the court reverse the entire convictions related to the acts where the defendants were convicted by a jury trial. In other words, the acts underlying this case are now considered legal under the new definition for official acts. In the second instance, the overturned conviction had been based on a guilty plea and a cooperation agreement with the U.S. Attorney’s office related to another case, U.S. v. Jefferson (U.S. v. Jackson, 2019). Concerning Congressman Jefferson’s trial conviction, the court overturned several counts, but one count was affirmed (U.S. v. Jefferson, 2017). Sufficient counts were overturned to allow for resentencing to time served, which resulted in Jefferson being released years earlier than his original sentence (Broach, 2017). In Dimora v. U.S. (2018), the court vacated a few counts based on the McDonnell test, but sufficient counts remained to maintain both conviction and sentence. In Table 4, all reversed cases’ facts are set out. When the court discusses different schemes, those situations are set out separately for each case.

Table 4

Underlying Facts for Reversed Convictions and Counts

Case Name

Factual scenario underlying the conviction or count reversals

U.S. v. Tavares (2016)

US Court of Appeals First Circuit

O’Brien, Tavares, and Burke served in high-ranking positions in the Massachusetts Office of the Commissioner of Probation from 2000-2010. In April 2000, Kathleen Petrolati’s husband, Thomas, a state representative, proposed increasing probation’s budget for more positions. Kathleen was hired for one of these positions 7 months later. In 2001, a change in legislation shifted the sole duty to hire and promote individuals in probation employees from local judges to the Commissioner of Probation, O’Brien, subject to approval by the Chief Justice of Administration and Management (CJAM). Then, O’Brien and his two deputies hire individuals named by legislators. These individuals were not the most qualified applicants as per personnel rules. Candidates sponsored by a legislator had a much greater likelihood of being hired than others. The named individuals from DeLeo’s office came from other representatives in a ploy to garner support for DeLeo’s election to Speaker of the House. The defendants used employment in the probation department to garner support from elected representatives to increase their budget, and it worked. During the hiring scheme, O’Brien met with DeLeo to ask for a significant pay raise, independence from oversight, and life tenure. O’Brien continued to hire recommended individuals, but DeLeo did not make any moves on his requests (U.S. v. Tavares 2016). DeLeo was elected Speaker of the House in January 2009 (Stout & Estes, 2020).

U.S. v. Jackson (2019) & U.S. v. Jefferson (2017)

US District Court, E.D. Virginia,

Alexandria Division.

Military Contracts

Vernon Jackson, the business owner of iGate Incorporated (provides broadband to poor black communities) based in Louisville, Kentucky, paid Congressman William Jefferson, who represented New Orleans, to facilitate government contracts. Jefferson met with an Army General and Jackson in his congressional offices to support iGates receiving an Army contract. Jackson was approved by General Accounting Office through the support of Jefferson. Jefferson held a second meeting with an Army Colonel to get the Army to buy iGates Technology. After the meetings with the generals, Jefferson entered a deal for Jackson to pay Jefferson $90,000 per year plus stock options through his wife’s consulting company for the promotion of his business. Jefferson worked with this arrangement from 2001 to 2005. (U.S. v. Jackson, 2019; U.S. v. Jefferson, 2017).

U.S. v. Jackson (2019) & U.S. v. Jefferson (2017)

US District Court, E.D. Virginia,

Alexandria Division.

African Trade Trip

Jefferson led a West African trade trip financed by Jackson to create business deals between African governments and iGates. Mainly, Jefferson put pressure on foreign officials to allow iGates to provide technology to Netlink Digital Television. Mr. Jefferson used his position as a U.S. Congressman “as part of House caucuses that promote trade in West Africa” (U.S. v. Jefferson, 2017, p. 738). While in Africa, Jefferson offered money and pressured African officials for iGate to receive contracts in their countries (U.S. v. Jefferson, 2017).

Dimora v. U.S., (2018)

Kleem scheme

US District Court, N.D. Ohio, Eastern Division

Kleem, a developer and contractor around the Cuyahoga County area, had multiple construction projects in the area. Kleem asked Dimora to have the private utility company expedite the service to his construction projects. Specifically, Dimora instructed his staff to call First Energy and ask them to rush the work for Kleem as a personal favor to him. First Energy has the contract with all government buildings in Cuyahoga County. Their contract is up for renewal a year following this phone call. Dimora and other commissioners decide whether to continue the contract or find a new provider (Dimora v. U.S., 2018).

Dimora v. U.S., (2018)

Zavarella extortion

US District Court, N.D. Ohio, Eastern Division

Zavarella built a retaining wall for free at Dimora's house and asked Dimora to help his daughter get a government job. Lauren received a job with the county, but it is unclear if Dimora did anything. In another instance, Zavarella, while building Dimora’s outdoor kitchen for free, asked Dimora to help his daughter obtain a job with Bedford City schools. Dimora wrote a recommendation letter on the county letterhead. In the last instance, Zaveralla called Dimora to request a county project's status on a neighborhood service center building. Dimora requested a staff member to “snoop” around the project (Dimora v U.S., 2018, p. 20).

Dimora v. U.S., (2018)

The H.U.D. project

US District Court, N.D. Ohio, Eastern Division

Pumper was working on a housing project in Cleveland with H.U.D. financing. “Pumper asked Dimora to call a US senator in an attempt to exert pressure on H.U.D. to move the process along in Washington. On April 7, 2008, Dimora placed the call through his assistant and put Pumper on the phone, so he could plead his case with the Senator” (Dimora v U.S., 2018, p. 22).

Source: Analysis of Westlaw cases citing McDonnell v. U.S. until March 31, 2019

Courts’ Reasonings and Characterizations

U.S. v. Tavares, 2016.

In the court’s reasoning to overturn the convictions, they found that the government did not provide sufficient links to a valuable thing given by O’Brien and any official acts performed or to be performed. The court sets out the necessary evidentiary nexus for the government to meet as:

But while a legislator’s vote in a leadership election may constitute an official act, the Government needed to prove, as the district court instructed the jury, a link between the gratuity that O’Brien gave DeLeo and a specific official act that DeLeo would undertake. The Government does not explain, however, how other legislators’ votes for DeLeo could qualify as DeLeo’s official acts. And no such explanation occurs to us (U.S. v Tavares, 2016, pp. 57-58).

The court held the government must show a direct connection between acts and gains.

The court made clear that acts done to achieve favor for political or policy gains in the future is not corruption.

The evidence shows at most that O’Brien gave DeLeo control over the ELMO [Electronic Monitoring] appointments to enable DeLeo to round up votes from other legislators. Such evidence may suffice to show that O’Brien gave the ELMO appointments to DeLeo to facilitate his path to power in the statehouse, in the hope that, by building up a “reservoir of goodwill” with DeLeo, the future speaker would use his power to benefit the Probation Department’s budget (U.S. v Tavares, 2016, p. 58).

In other words, nothing in the law prevents O’Brien and others from creating a culture of reciprocity with legislators using public monies to reward political allies with government positions. Further, the court could not find a sufficient direct linkage between the probation hires and DeLeo’s action beyond the meeting. A meeting is an insufficient basis for an official act under McDonnell (US. v. Tavares, 2016).

In U.S. v. Tavares (2016), the court characterized the situation as “[t]his case involves state officials’ efforts to increase funding for their department through closed-door arrangements with state legislators and other public officials. But not all unappealing conduct is criminal” (U.S. v. Tavares, 2016, p. 54). In fact, the judge remarked that “the actions of the defendants may well be judged distasteful, and even contrary to Massachusetts’s personnel laws” (U.S. v. Tavares, 2016, p. 49).

U.S. v. Jackson (2019).

The second conviction impacted by the new McDonnell test differed substantially from the Tavares case. The court’s ruling regarding Jackson weighted heavily on the actions taken in U.S. v. Jefferson to vacate these specific counts. The court found that

the fact that Jefferson did not perform official acts clearly is strong evidence that defendant did not make payments to Jefferson with the intent to influence official acts and did not conspire to do so. Indeed, given that defendant continued to pay Jefferson over a period of time during which Jefferson performed only non-criminal and non-official “constituent services” for iGate, it appears that [the] defendant paid Jefferson with the understanding and intent that such payments would be made in exchange for acts by Jefferson that are not criminal under McDonnell. Therefore, in the absence of other evidence reflecting a criminal intent, the fact that Jefferson did not perform official acts demonstrates that defendant did not give, offer, or promise anything of value to Jefferson or conspire to do so with the intent to influence official acts (U.S. v. Jackson, 2019, p. 269).

The government argued that the defendant’s testimony at trial indicates that he intended for Jefferson to take official actions. However, the court disagreed and held, “the actions that Jefferson in fact performed for iGate in return for defendant’s continued payment, demonstrates that the ‘help’ defendant paid Jefferson to perform was non-official ‘constituent services’ that are not criminal under McDonnell” (U.S. v. Jackson, 2019, p. 270). At the end of the opinion, the court stated:

although defendant’s conduct, namely paying a public official and his family large sums of money in exchange for that public official’s promotion of defendant’s private business interests, does not fall within the scope of the bribery statute, such conduct is clearly detrimental to the effective and fair operation of our democratic, representative government and undermines public trust of elected officials (U.S. v. Jackson, 2019, p. 274).

U.S. v. Jefferson (2017) related to U.S. v. Jackson (2019)

In the first scheme regarding military contracts, the court held that “[t]here is no indication that Jefferson pressured General Hylton to admit iGate technology for testing; in fact, General Hylton’s own testimony at trial was that Jefferson never ordered him to test iGate products” (U.S. v. Jefferson, 2017, p. 737). The court reached the same holdings concerning the meeting with Colonel Brown. The court’s reasoning for vacating these counts was because the meeting happened before the bribery occurred, the meeting was unofficial, and since there was no pending decision, the congressman could not bring pressure. In other words, McDonnell allows for meetings, and since no orders came from it, no official actions were found to be taken.

In the second scheme related to Mr. Jackson, the court held that “Jefferson’s actions to pressure foreign officials cannot be official acts because the official…matters before African officials are not…matters pending before an official under 18 U.S.C. §201” (U.S. v. Jefferson, 2017, p. 738). According to the court, Jefferson merely introduced parties to Export-Import Bank to obtain financing for the television and iGates deal. The government did not provide any evidence that he pressured anyone. In other words, the court found that “promoting trade is too general to be a matter pending before a public official just as promoting business in Virginia was too general in McDonnell” (U.S. v. Jefferson, 2017, p. 738).

While the court found that all of Jefferson’s actions concerning iGates schemes “focused on ‘constituent services’ and other activities that were not criminal” under 18 U.S.C. § 201, they did support the counts upheld under Foreign Corrupt Practices Act and, therefore the conviction was affirmed with some counts vacated. The court held that Jefferson’s actions “went well beyond being ‘tawdry’ and ‘distasteful’; they were plainly venal and reflected corrupt intent, and this is true also for the conduct related to iGate and the other schemes for which his convictions will be vacated” (U.S. v Jefferson, 2017, p. 744) The counts vacated reduced his sentence from 13 years to 5 years he had already served (Broach, 2017).

Dimora v. U.S., (2018).

In contrast to Jefferson, who had all but one count overturned, Dimora’s counts remained intact because he had committed other actions that were within his official acts that were beyond the ones disputed. In Dimora v. U.S. (2018), Judge Lioi examined each count under review for whether an official act occurred to support Dimora’s convictions under the new McDonnell test. In relation to Kleem and First Energy, the court found that the connection between the phone call request and the contract vote was too remote as the vote on the contract that was about a year away (Dimora v. U.S., 2018). In the most recent ruling, Judge Lioi characterized this phone call as a mere “footnote” in Dimora’s schemes relating to Kleem (Dimora v. U.S., 2022, p. 15).

In relation to the extortion of Zavarella, another local businessman and developer, the court has found only two of the five counts as an official act under the new McDonnell test. The court did not find any evidence to indicate that Dimora used his authority in any way to have the contract given to Zavarella. The court did recognize that the “inquiry may have been prompted by a bribe” (Dimora v US, 2018, p. 20). In the court’s reconsideration, the two counts related to Zavarella were vacated because of potential error from the overboard jury instructions since only 2 out of the 5 instances for these two counts were official acts (Dimora v. U.S., 2022).

In the last situation, Pumper, another developer, was working on a housing project in Cleveland with H.U.D. financing. However, the court did not find that Dimora used or exerted pressure on a Senator. The court characterized the call as helping a constituent “get in contact with the right public official” (Dimora v U.S., 2018, p. 23).

When the court looked at the other behaviors supporting each count, the court found that while some actions are not considered illegal based on the new McDonnell test, the government had proven enough on each count to affirm the conviction and support the sentence. Judge Lioi characterized Dimora’s appeal to be based on McDonnell as inconsequential because “the jury heard nearly six weeks of testimony—in addition to Dimora’s own self-implicating words in tape-recorded conversations—that established that he did so much more than set up meetings or place phone calls” (Dimora v U.S., 2018, p. 26).

McDonnell Ruling Not Controlling

A subset of court opinions (n=13) based on 10 cases found that the McDonnell ruling was not controlling for the definition of official acts because they were not brought under 18 U.S.C. § 201(a), as seen in Table 5. Theft of government funds under 18 U.S.C. § 666 (n=7) became the primary statute argued regarding application of the McDonnell rule. The courts held that under § 666 “official acts” are not an element as it is under § 201(a); and therefore, the narrowing definition is irrelevant regardless that these cases usually involved public officials in some form. State laws sustained two cases, and only one case focused on mail and wire fraud 18 U.S.C. §§ 1341; 1343. One case was based on 18 U.S.C. § 201 but under subsection b rather than a, which had been the basis for the McDonnell ruling (Edmondson v. U.S., 2017).

Table 5

Cases, Statutes, and Courts’ Reasoning for not using the McDonnell test.

Case Name/

Statute Involved

Facts

Court Reasoning

Montemayor v. Warden F.C.C. Beaumont (2017)

18 U.S.C. § 666

US District Court, E.D. Texas, Beaumont Division

Former elected member of the Commissioner’s Court accepted payments to employ people in county positions.

“an official act is not an element of the offense under 18 U.S. C. § 666” (p. 2)

Edmondson v. U.S. (2017)

18 U.S.C. § 201 (b) (2)

US District Court, E.D. North Carolina,

Western Division

Edmondson, an army officer, created false invoices and certified them as complete causing unlawful payments to himself and others.

“The Supreme Court’s holding in McDonnell is inapplicable here because subsection (B) is the relevant part of the statute pertaining to petitioner” (p. 3).

Winfield v. U.S. Probation (2018)

18 U.S.C. § 666

US District Court, S.D. Mississippi, Western Division.

The Mayor of Vicksburg, MS, solicited bribes to award city contracts.

“This case addressed an entirely different statute” (p. 2)

U.S. v. Reed (2018)

La. R.S. § 18:1505.2(I)(a).

District Court, E.D. Louisiana.

Reed, District Attorney, used campaign funds for personal use.

“The jury was tasked with determining whether the defendants committed simple wire fraud by defrauding Reed’s donors” (p.111).

U.S. v. Porter (2018)

18 U.S.C. § 666

US Court of Appeals, Sixth Circuit.

Porter, mayor of Paintsville, Kentucky, steered business and contracts to individual companies to ensure payment of a fraudulent invoice for payments disguised as loans.

“In McDonnell, the Supreme Court limited the interpretation of the term “official act” as it appears in § 201, an entirely different statute than the one at issue here” (p. 565)

U.S. v. Maggio (2017)

18 U.S.C. § 666

US Court of Appeals, Eighth Circuit.

State Circuit Judge accepted a campaign donation from C.E.O. and lowered the jury award against C.E.O. to 1 million. 

“McDonnell was about what conduct rises to the level of an “official act” within the scope of a different bribery statute” (Footnote 8)

U.S. v. Bravo-Fernández (2017)

18 U.S.C. § 666

U.S. District Court. Puerto Rico.

The case arose from a trip for agents of Puerto Rico paid by the defendant for government contracts.

“[D]efendants’ reliance on McDonnell, Bond, and Yates, is misplaced because none of these decisions has anything to do with interpreting the meaning of an “agent” within the context of section 666” (p. 536).

Elgawhary v. U.S.

18 U.S.C. §§ 1341; 1346, 1956(h), and 26 U.S.C. § 7212.

District Court Maryland

He worked for a private corporation on a public contract and embezzled money from the company.

“To conclude McDonnell applies, Petitioner assumes that he was exclusively a public official, and that honest services fraud can only be defined about the federal bribery statute, 18 U.S.C. § 201. Neither of these assumptions is correct. Petitioner was a private employee, and bribery has more than one possible definition.” (p. 4)

Commonwealth v. Veon (2016)

65 Pa.C.S. §§ 1102; 1103

PA ethics laws

Supreme Court of Pennsylvania.

Veon, an elected PA Representative, created BIG, a non-profit that obtained money from the State of PA. The non-profit used to share space with his district office. Now BIG paid little less than half of the rent for his district office. Then BIG paid rent on another space, which was his second district office. A third space was rented on the South Side by BIG for Veon.

“The trial court’s jury instruction here made of the statute a meat axe, finding (or creating) a conflict of interest on every dais, at each parade, and at every ribbon-cutting, given that the very nature of seeking to satisfy one’s constituents and secure reelection all but requires the taking of official action to secure intangible political gains. This criminalization of politics is a bridge too far.” (pp. 447-448)

U.S. v. Robles (2017)

18 U.S.C. § 666

US Court of Appeals, Ninth Circuit.

Robles, the former treasurer of South Gate, California, created a scheme in which he extorted city contractors to use his influence on steering projects to those paying bribes that totaled more than $1.4 million.

“this court established the law of the case by affirming Robles’s conviction for bribery in violation of 18 U.S.C. § 666…because these intervening higher authorities addressed the interpretation of statutes other than § 666” [citing McDonnell] (p. 906)

Source: Cases published on Westlaw found in Westlaw search for cases citing U.S. v. McDonnell

In all but one case, the convictions were affirmed. Only one state case found similarities to McDonnell, but the case was remanded for a new trial rather than reversed (Commonwealth v. Veon, 2016).

Discussion

The lower courts used the McDonnell test in 88% of the cases (n=95) at this point. These cases were brought under 18 USC § 201 (a). The lower courts have declined to expand it to other statutes. When the cases (n=93, 98%) used the McDonnell test, the prior convictions relating to corrupt behaviors were sustained as still illegal. The legacy of the McDonnell ruling does not appear to be as dire as some of the critics suggested (Sorkin, 2016; Toobin, 2016). This analysis supports prosecutors’ decision making regarding whom to prosecute and for what is valid in that they are criminalizing corrupt behavior and not criminalizing politics, as George Will (2016) stated. The concerns about criminalizing the political process do not appear to be grounded in these cases that followed McDonnell. Consequently, bribery is illegal and can still be prosecuted successfully when an explicit quid pro quo is present.

However, the types of cases where the convictions or guilty pleas were overturned (2%) represent a valid concern for an honest, democratic, and transparent government. They are also the legacy of the McDonnell ruling. This case and others stemming from it will also continue to erode the court’s legitimacy. The courts recognize the behavior as loathsome from public officials, and when the court cannot sanction the behavior, the court expresses concern about the ramifications of inaction, as summarized in Table 6.

Table 6

Reversed Convictions and Counts paired with Court’s Characterization

Case

Action Underlying Case

Court’s Characterization

U.S. v. Jackson (2019) & U.S. v. Jefferson (2017)

Patronage scheme to keep legislators voting to increase the agency’s budget and reward the legislators with giving people jobs. Therefore, the head of the agency has more significant influence.

“But not all unappealing conduct is criminal” (U.S. v. Tavares, 2016, p. 54).

U.S. v. Jackson (2019)

Businessman meets an elected official (not his own) and asks him to help get his company military and government contracts. After setting up meetings with military leadership, Businessman puts the elected official’s wife’s company on the payroll to pay for the elected official’s actions to promote the business for contracts.

“(S)uch conduct [paying elected representatives to gain government and military contracts] is clearly detrimental to the effective and fair operation of our democratic, representative government and undermines public trust of elected officials” (U.S. v. Jackson, 2019, p. 274).

U.S. v. Jefferson (2017)

Businessman funds a foreign trade trip where the elected official bribes and pressures foreign officials to contract with the company financed through the Export-Import Bank of America.

Jefferson’s actions went well beyond being “tawdry” and “distasteful”; they were “plainly venal and reflected corrupt intent, and this is true also for the conduct related to iGate and the other schemes for which his convictions will be vacated” (U.S. v Jefferson, 2017, p. 744)

Dimora v. U.S., (2018)

As a county commissioner, he used his position to approve advantageous contracts for his sponsors or exert pressure on other officials in favor of his sponsors (e.g., jobs, building permits, inspections, etc.). In return, he gained items (e.g., property, vacations, money) for himself.

“There is no doubt that the Supreme Court’s decision in McDonnell changed the legal landscape regarding the federal bribery statute and the concept of ‘official acts.’ That ruling did not, however, change the evidence offered at Dimora’s trial” (Dimora v U.S., 2018, p. 26).

Source: Analysis of Westlaw cases citing McDonnell v. U.S. until March 31, 2019

For example, the Massachusetts case shows a more sophisticated influence peddling situation. Instead of using one’s own money to garner support from legislators, O’Brien and his co-defendants allowed legislators to appoint persons into probation positions. These appointments were used by legislators to garner support for another legislator’s vote. Consequently, O’Brien and legislators used taxpayers’ money by paying individuals to do public jobs in return for support from legislators towards his agency. This transactional relationship may be what Will (2016) finds acceptable as typical political actions. However, the court found it odious while legal (US. v. Tavares, 2016). The public can draw a straight line from jobs being used as incentives for legislators to vote in support of DeLeo for Speaker of the House, which happened in January 2009, a year prior to the Boston Globe Spotlight article (Globe Spotlight Team, 2011; Stout & Estes, 2020). The public distrust grows when situations such as O’Brien’s probation department grow and individuals face little to no consequences. This public distrust of elected representatives culminated in the victory of Donald Trump for President and then the proliferation of the Big Lie.

Beyond the clear patronage system in Massachusetts, the nearly $100,000 in the freezer shows a level of obfuscation to conceal one’s shady business, at least in the public’s eyes (Shenon, 2006). The court’s rulings in Jefferson and Jackson cases also led the public to believe that elected officials were for sale. Jackson was not a constituent of Jefferson’s. Jackson’s business was in Louisville, Kentucky, not in William Jefferson’s congressional district in Louisiana, nor did it have any jurisdiction ties. Mr. Jackson’s business had developed a way to transmit information at high speeds over copper wiring and was interested in selling this technology (Broach, 2018). Mr. Jefferson was an attorney with no background in information technology.

The court clearly stated that Jefferson provided “non-official ‘constituent services’ for iGate” (U.S. v. Jackson, 2019, p. 269), but it is unclear how someone who does not live or work in one’s district can be seen as a constituent. It also does not justify why Mr. Jackson had to pay Jefferson through his wife’s company for providing him with constituent services that, in a representative democratic system, are paid for by the taxpayers. In his testimony, Jackson clearly stated that he paid Jefferson because he was a congressman and to act in his official capacity to help him (U.S. v. Jackson, 2019). While Jefferson was working to secure business for iGate, he was not working for his constituents. It might have been better for prosecutors to prosecute Jefferson for simple wire fraud since he did not appear to be successful in gaining any business for iGates, in a similar way that Reed defrauded his donors (U.S. v. Jackson, 2019; U.S. v. Jefferson, 2017; U.S. v. Reed, 2018).

In the end, Jefferson was resentenced to time served for the reduction in counts and attempted to overturn the civil judgment against him related to the money from iGates (Broach, 2017, 2018). On June 8, 2022, Judge Lioi lowered Dimora's sentence by 5 years because of the two vacated counts related to Zavarella (Trexler, 2022). It is clear from McDonnell's legacy that prosecutors have brought criminal cases and did not criminalize politics. In the future, prosecutors will have a more challenging time prosecuting the more sophisticated influence peddling (U.S. v. Tavares, 2016) and situations that seek power or retribution, especially when it involves state or local officials (Kelly v. U.S., 2020).

Future Directions

In the future, it will be tough for prosecutors to pursue such convoluted transactional relationships that betray the fiduciary duty owed to the public and promote self-serving actions to grow one’s power and authority. Until the Supreme Court recognizes that for some individuals, power is a commodity as much as property is, the inequities of the law on the books to the law in action will continue to undermine the rule of law, as Justice Brandeis warned in Olmstead v. U.S. (1928). Additionally, the Court does not appreciate that public corruption cases are seldom brought by state or local prosecutors. If the Court curtails federal prosecutors from prosecuting state and local corruption cases, those cases will not be brought (Cordis & Milyo, 2016). States could also enact malfeasance and dereliction of duty laws as long as both define the crimes as using one’s authority to gain money, property, and power. However, the news laws do not resolve the reluctance seen in local prosecutors (Artello & Albanese, 2019a).

The lessons learned from the Jefferson and Dimora cases are that prosecutors will want to narrow their indictments to the most egregious actions, although this action reinforces the public’s perception of government officials for sale. Prosecutors may wish to start using the non-official acts as grooming behaviors to lead someone to bribery, extortion, or kickbacks in the same way pedophiles will groom their victims with small gifts (McAlinden, 2006). As McAlinden (2006) described, pedophiles have groomed institutions to allow them access to their victims, and public officials have been grooming the court to believe that they can’t do their jobs unless they are given freedom from criminal prosecution for selling access to them or buying favors. The consequences of these actions could be the end of a government responsive to all of its people. Instead, it will become responsive only to those with money and power.

References

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Cases Cited

Commonwealth v. Veon, 637 Pa. 442, 150 A.3d 435 (2016)

Dimora v. United States, No. 1:10CR387, 2018 WL 5255121 (N.D. Ohio Oct. 22, 2018), vacated and remanded, 973 F.3d 496 (6th Cir. 2020)

Dimora v. United States, No. 1:10-CR-387-1, 2022 WL 767849 (N.D. Ohio Mar. 14, 2022)

Edmondson v. United States, No. 5:15-CR-118-BO, 2017 WL 2210255 (E.D.N.C. May 18, 2017)

Elgawhary v. United States, No. CR DKC 14-0068, 2018 WL 398284 (D. Md. Jan. 11, 2018), appeal dismissed, 738 F. App'x 160 (4th Cir. 2018)

Kelly v. United States, 140 S. Ct. 1565 (2020)

McDonnell v. United States, 136 S. Ct. 2355 (2016).

Montemayor v. Warden, FCC Beaumont, No. 1:17CV97, 2017 WL 9480871 (E.D. Tex. Apr. 25, 2017), report and recommendation adopted, No. 1:17CV97, 2018 WL 2411780 (E.D. Tex. May 29, 2018)

Olmstead v. United States, 277 U.S. 438 (1928)

Skilling v. United States, 561 U.S. 358 (2010)

United States v. Bravo-Fernandez 246 F.Supp.3d 531 (D.P.R. 2017)

United States v. Jackson, 371 F. Supp. 3d 257 (E.D. Va. 2019)

United States v. Jefferson, 289 F. Supp. 3d 717 (E.D. Va. 2017)

United States v. Maggio, 862 F.3d 642 (8th Cir. 2017)

United States v. Porter, 886 F.3d 562 (6th Cir. 2018)

United States v. Reed, 908 F.3d 102 (5th Cir. 2018), cert. denied, 139 S. Ct. 2655, 204 L. Ed. 2d 285 (2019), and cert. denied, 139 S. Ct. 2658, 204 L. Ed. 2d 285 (2019)

United States v. Reed, No. CR 15-100, 2017 WL 947274 (E.D. La. Mar. 9, 2017)

United States v. Robles, 698 F. App'x 905 (9th Cir. 2017)

United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999).

United States v. Tavares, 844 F.3d 46 (1st Cir. 2016)

Winfield v. United States Prob. & Pretrial Servs., No. 5:18-CV-11-KS-MTP, 2018 WL 5298153 (S.D. Miss. Oct. 25, 2018), aff'd, 810 F. App'x 343 (5th Cir. 2020)

Statutes Cited

Bribery of public officials and witnesses, 18 USC § 201 (1962)

Conspiracy to commit offense or to defraud US, 18 USC §371 (1948)

False, fictitious, or fraudulent claims, 18 USC §287 (1948)

Fraud by wire, radio, or television, 18 USC §1343 (1952)

Hobbes Act--Interference with commerce by threats or violence, 18 USC § 1951(1948)

Honest Service Fraud-Definition of "scheme or artifice to defraud", 18 USC §1346 (1988)

Mail Fraud - Frauds and swindles 18 USC §1341 (1948)

Public money, property, or records, 18 USC §641 (1948)

RICO - prohibited activities, 18 USC 1962 (1970)

Statements or entries generally, 18 USC §1001 (1948)

Theft or bribery concerning programs receiving Federal funds, 18 USC §666 (1984)

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