U.S. Prosecutors Bring Joy To Politicians and Lobbyists.
By Frank VoglSeptember 14, 2016
(a version of this article was first published on theglobalist.com on September 12, 2016)
The U.S. Department of Justice has announced that it will not seek a new trial of the former Governor of the state of Virginia, Robert McDonnell and his wife, Maureen McDonnell on charges of corruption. A jury found them both guilty in 2014 for receiving gifts of over $175,000 from a businessman, but the U.S. Supreme Court overturned the convictions in a June 2016 ruling.
Government prosecutors, who could have decided to try the case again, announced on September 7 that: “After carefully considering the Supreme Court’s recent decision and the principles of federal prosecution, we have made the decision not to pursue the case further.”
As a result, prosecuting corruption by U.S. public officials has just become far more difficult. Lobbyists and politicians can feel more confident that their myriad exchanges and relationships are less likely to lead to corruption prosecutions. The U.S. has now fallen into line with the lax standards of business-political relationships that pervade many other countries.
Mainstream US Politics Likes Cash
While left-wing Democratic politicians, notably Senators Bernie Sanders and Elizabeth Warren, rail against corruption in U.S. politics, the mainstream Democratic Party officials at the helm of the Justice Department, have accepted an increasingly narrow definition of political corruption. This is the message from the Justice Department’s decision not to retry the McDonnells – a decision significantly endorsed by a major figure in the Democratic Party’s leadership (and close friend of the Clintons), current Virginia Governor Terry McAuliffe.
Perhaps the bigger message is that the mainstream U.S. politicians from both political parties are content to accept money in politics in all its forms. The new era of greater money flows started with the 2010 Supreme Court ruling, decided by its then five conservative members, in the Citizens United case that watered-down existing regulations while also opening the floodgates to corporate financing of elections.
The latest U.S. developments send a clear message: actions by politicians that look wrong, smell wrong, and raise profound ethical issues, are deemed legal by the courts.
Supreme Court Narrowness
The U.S. Supreme Court has determined that corruption in the public sector is a criminal act only when there is a specific quid pro quo. To be clear, a case of criminal corruption can only be brought when a politician takes a direct action that leads to a meaningful financial benefit for an individual or organization that has provided the politician with valuable gifts.
The Supreme Court concluded that the McDonnells did nothing criminally wrong when Virginia businessman Jonnie Williams Sr. gave them a gold Rolex watch, a Ferrari, $50,000 in financial aid for their beach house and a significant portion of the costs of their daughter’s wedding. Newspaper readers may associate this kind of behavior with Third World or former Soviet countries – but its legal in the U.S. today.
Williams, who ran a dietary supplement company, needed public credibility to build his business and saw the McDonnell’s as key to his goal. In one situation Governor McDonnell spoke to Williams about the status of a promised loan, then a few minutes later McDonnell called senior officials to arrange a meeting for Williams. The U.S. Supreme Court decided that such activities were OK.
So the standard now is that there has to be a smoking gun that shows that gifts explicitly resulted in a real business gain for the giver. On that basis most canny political leaders in most countries could easily avoid criminal prosecution for corruption. After all, it is not rocket science for such leaders to ensure their fingerprints are not on government contracts awarded to friendly businessmen, but that the specific signatures on deals are those of less important government officials.
Many U.S. politicians will be happy about the latest decisions. For example, recently a New York court found Sheldon Silver, the once powerful Speaker of the New York State legislature, guilty of corruption and he was sentenced to 14 years in prison. And, right now the U.S. Justice Department is investigating alleged corruption involving U.S. Senator Robert Menendez. The new decision may improve the chances for Silver to appeal his conviction, just as it may make Menendez more confident that even if he faces trial then he still may never face prison.
The U.S. Supreme Court made a unanimous decision in support of the McDonnell's. Chief Justice John Roberts announced the ruling and stressed that critical in determining corruption is the definition of what is an illegal "official act." The Court rules that there has to be a specific benefit and that setting up a meeting, calling another public official, or hosting an event does not, standing along, qualify as an "official act."
Justice Roberts stressed that a less narrow interpretation would limit the proper services performed by public officials. Roberts noted: “Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. Representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.”
The U.S. Justice Department’s decision not to retry the McDonnells will be an encouragement to lobbyists of all kinds in their relationships with public officials in the United States. They will know that now it is less likely that any action they take that does not include a very specific quid pro quo will probably not lead to any charges brought against them by U.S. prosecutors.
America needs a new law that ensures that all kinds of “influence-peddling” that take place in secrecy are illegal. Indeed, it needs public financing of elections and far stricter ethics/conflict of interest laws at the federal and state levels for public officials. The chances that such reforms will come in the near future are remote.