And There You Have It. Bribery Is Legal in the U.S.

by Gaius Publius

Former Governor Bob McDonnell will no longer be prosecuted for public corruption and is being cleared of all charges. Bribery of public officials is now legal in the U.S. unless the perp is dumb enough to be spotted agreeing to a direct trade. From the Washington Post:

Prosecutors will drop case against former Va. governor Robert McDonnell

Prosecutors will not attempt to retry former Virginia governor Robert F. McDonnell and his wife Maureen on corruption charges, ending a four-year saga that rocked the Commonwealth’s political class and cut short the rise of a Republican star, according to a court filing.

The filing Thursday asks that the case be sent to a lower court, where prosecutors will formally file a motion to dismiss.

The decision is a major victory for the former governor, who has always maintained that he did nothing illegal in his relationship with a nutritional supplement salesman. It’s a blow to both the U.S. Attorney’s Office — which had recommended pressing forward with the case to Justice Department higher-ups — and advocates for strict enforcement of anti-corruption legislation.

To be clear, McDonnell was found guilty by a lower court...

McDonnell and his wife were convicted of taking more than $175,000 in loans and gifts — a Rolex watch, vacations, partial payments for a daughter’s wedding reception among them — in exchange for helping Richmond businessman Jonnie R. Williams Sr. advance a dietary supplement his company had developed.

The McDonnells arranged to connect Williams with state officials, let him throw a luncheon at the governor’s mansion to help launch the product and shape the a guest list at a mansion reception meant for health-care leaders.

...but the Supreme Court (in a unanimous decision, by the way) narrowed the definition of bribery after his conviction to the strictest quid pro quo standard — if there's no proof of a deal, it's not corruption:

However, clinical tests of the product at state universities were never conducted despite Williams’s prodding. The Supreme Court ruled that what McDonnell did for Williams fell under the standard business of a public official helping a constituent.

“Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time,” Chief Justice John Roberts wrote.

You can read the Supreme Court ruling here (pdf). As Chris Cillizza wrote in covering it: "The Bob McDonnell Supreme Court ruling makes convicting politicians of corruption almost impossible."

That bribery of public officials is legal in theory has now been confirmed in fact. McDonnell has been cleared of all charges and will not be reprosecuted. No smoking gun, so no quid pro quo and no corruption. Just business as usual in these United States.

(I credit my headline above to David Swanson. He's exactly right.)

Public Corruption: The Use of Public Power for Private Purposes

I've written, endlessly it seems to me, about Rule of Law and how we don't have it in practice.

In particular, it's clear that there's a circle of immunity from prosecution that, starting with the president in the Nixon pardon, widened to include not just the president and vice-president (Agnew was prosecuted before Nixon was pardoned), but all of his top advisers (the pardons of the Iran-Contra gang) — until finally a straight-up crook like Jon Corzine (a former senator, governor, Democratic Party fundraiser, and Goldman Sachs CEO) couldn't get indicted for actually stealing actual money (the MF Global affair).

You didn't see Bush indicted for war crimes (torture among them), nor any banker indicted for the obvious and blatant fraud that led to the 2008 economic meltdown, or for continuing fraud since. Now we're defining "quid pro quo" as the only standard that indicates corruption, and defining it very narrowly at that. But what is public corruption really? One of the more common definitions is this one:

Corruption is the use of public power for private purposes.

Here's how Zephyr Teachout, a law professor, author of the book Corruption in America and candidate for Congress in New York’s 19th District, put it in the Washington Post (emphasis mine):

How the Supreme Court gets corruption totally wrong

...While quid pro quo is, in fact, a Latin phrase, that’s the extent of the rightness of his argument. The phrase comes from contract law, and traditionally was used to describe a relatively equal exchange between parties to a contract. It is not historically a phrase from corruption law....

Our founding generation understood that corruption happened whenever those in public power use public power for private ends. They also understood corruption as the central threat to the survival and flourishing of our country. During the Constitutional Convention, the Founding Fathers debated the corruption implications of dozens of Constitutional provisions, and George Mason described their job as protecting against corruption lest the country “be at an end.” Alexander Hamilton described the convention as a project in enacting “every practical obstacle to corruption and cabal.”

We know the Founders weren’t just talking about direct exchanges of money for official action, because as Professor Larry Lessig has shown, only five of the 325 mentions of “corruption” in the debates around the ratification of our Constitution referred to what would now be considered criminal bribery. The rest referred to instances where those in public power used that power for private, selfish ends. The fact that the narrow quid pro quo definition has replaced the traditional idea of corruption is not just bad history; it’s a dangerous misunderstanding.

"A dangerous misunderstanding." (Teachout is being kind here. The Court's decision itself may be corrupt by her definition, especially if a justice was groomed and promoted by the wealthy and their political retainers to make just these decisions.) The argument formerly (but no longer) employed by Democrats and progressives against the Citizens United decision, and later McCutcheon v. FEC, was that quid pro quo arrangements were not the only, or even the most dangerous, forms of corruption. A quid pro quo, especially for money, was was formerly thought by Democrats to be among the least dangerous forms of corruption.

For example, if give you something you want (a Presidential pardon, say) and you give me something I want (elevation to the Presidency) — that's corrupt by any definition, even if a deal was never discussed. And not a dime changed hands.

But corruption can be more amorphous; it often includes just a network of mutually beneficial relationships, each passing gifts, held in the public trust, to the others. A former governor and current senator of a state, say, West Virginia, might use his public influence (a) to make sure his daughter's career saw significant advancement, and even (b) to make sure she got a state university degree to which she was otherwise unentitled. He might not even have had to make the phone call to get her the degree, so long as the university president knew who she was.

The first example could easily describe Gerald Ford's pardon of Richard Nixon. Did they make a deal? Did they even have to discuss it?

The second could well describe Joe Manchin's shepherding of his daughter Heather Bresch's career — including the part about the degree (my emphasis):

Mylan CEO Heather Bresch ... isn’t some ordinary greedy pharmaceutical executive. She’s the daughter of US Senator Joe Manchin (D-WV). She finished her BA in political science at West Virginia University (WVU) and was hired by Mylan in 1992 after her powerful father spoke to former CEO Milan Puskar. She rose through the ranks at Mylan, eventually serving at Director of Government Relations from 2002-2005, while her father was WV Secretary of State. In 2008, there was a controversy at WVU after she claimed to have an MBA. The university initially disputed the claim, but then awarded her an MBA despite only completing 22 of 48 credits required. After public embarrassment, WVU rescinded her degree and the university president, a former consultant and lobbyist for Mylan, resigned in disgrace.

Joe Manchin was governor of West Virginia in 2008, yet there's no smoking gun, so no proof as such. Just a network of relationships — Mylan, Manchin, Bresch, a Mylan lobbyist-turned-university president — and the power of public offices used for mutually beneficial gain.

See how that works? If proof of a direct connection is the only standard, how do you ever get a conviction? Answer: You don't. By that standard, you couldn't convict a shooter of murder so long as the shooter wipes the gun — even if the shooter, the corpse, the print-free gun, and a big wide smile were found in the same locked room.

Or consider this. It's now easier to be convicted of murder in the U.S. than for any form of public corruption. It's officially all for sale. Let the games begin.

GP