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
 

New York Values-- Zephyr Teachout vs A Culture Of Corruption

Over the weekend Zephyr Teachout, the Blue America backed congressional candidate for the open blue-leaning seat in the Hudson Valley and Catskills (NY-19), made news twice. First came the announcement that, with no cooperation from a hostile DCCC she raised $418,000 in April, primarily from small grassroots donors who find her values-based, issues-oriented campaign appealing. She had already raised $530,733 by March 31, so she's closing in on a million dollars raised.

This turns the DCCC model on it's head in every way. Obama won this district against McCain 53-45% and then won it again in 2012 against Romney, 52-46%. The DCCC knows she's going to win this Republican-held seat and they're distraught over it. If Nancy Pelosi was worth a tenth of what the old Nancy Pelosi was worth, she'd go in there with a broom and clean the whole building out and start from scratch. But she's not... and she won't.

This was facilitated by an e-mail-- just one-- that Bernie sent out to his supporters in April, asking them to consider contributing to Teachout's campaign. "When we talk about a political revolution," he wrote, "we also need to have people in Congress who aren't beholden to special interests. That's why I want you to meet Zephyr Teachout, who's running for Congress in New York as a Democrat. Zephyr literally wrote the book on political corruption. She understands better than anybody how special interests try to buy off politicians, and she's dedicated her life to fixing our broken political system. Zephyr is exactly the kind of person I'd want in Congress when I'm president... Zephyr's not just against fracking-- she worked hand-in-hand with anti-fracking activists to help stop it in New York State. She's not just against political corruption-- she's led organizations to fight the influence of money in politics and to break up the banks too. And now that she's running for Congress, she's doing it with a grassroots movement, with more than 10,000 donors to her campaign in just a few months. Zephyr is the real deal. Can you help her with a contribution?"

That beats the DCCC model which dictates that candidates sell their souls to fat cats for maxed out contributions. That Zephyr can succeed this way drives party bosses like Israel, Schumer, Crowley and Hoyer to distraction. They refuse to put her or even the district on their Red to Blue page, which is primarily reserved for corrupt conservatives like Monica Vernon (IA), Randall Perkins (FL), Pete Gallego (TX), Josh Gottheimer (NJ), Lon Johnson (MI), Val Demings (FL), Bryan Caforio (CA), and Mike Derrick (NY).

The second news Zephyr made over the weekend was the OpEd she penned for the Virginian-Pilot, far from the Hudson Valley geographically but about a topic as important to people in her district as it is for the folks in Virginia: there's no such thing as a free Rolex.

This week, the Supreme Court heard McDonnell v. United States, the case of Bob McDonnell, the former governor of Virginia who is appealing his 2014 conviction for public corruption. Although the court’s ruling is not expected until June, in Wednesday’s hearing several justices seemed set on undermining a central, longstanding federal bribery principle: that officials should not accept cash or gifts in exchange for giving special treatment to a constituent.

Justice Stephen G. Breyer dismissed the idea that, in the absence of a strong limiting principle, federal law could criminalize a governor who accepted a private constituent’s payment in exchange for intervening with a constituent problem. Justice Samuel A. Alito Jr. expressed disbelief that an official requesting agency action on behalf of a big donor would be a problem. A majority seemed ready to defend pay-to-play as a fundamental feature of our constitutional system of government.

In September 2014, after a six-week trial, a federal jury convicted McDonnell and his wife, Maureen, on multiple counts of extortion under the Hobbs Act, a key statute against political corruption, and honest-services fraud. It was not a complicated case. Jonnie Williams Sr., the chief executive of a dietary supplement manufacturer, Star Scientific, had showered the governor and first lady with gifts in return for favors.

We’re not talking about a few ham sandwiches. The McDonnells took expensive vacations, a Rolex, a $20,000 shopping spree, $15,000 in catering expenses for a daughter’s wedding and tens of thousands of dollars in private loans. In exchange, the governor eagerly promoted Williams’ product, a supplement called Anatabloc: hosting an event at the governor’s mansion, passing out samples and encouraging universities to do research.

There was ample evidence of connection between the favors and the governor’s actions. In one instance, McDonnell emailed Williams asking about a $50,000 loan, and six minutes later sent another email to his staff, requesting an update on Anatabloc scientific research. For the jury, that was more than enough to find McDonnell guilty.

The former governor has claimed on appeal that he had a First Amendment right to accept these gifts. He also disputed that holding meetings, hosting events at the governor’s mansion and recommending research were “official acts.” There were quids, he argued, but no quos.

The justices seem poised to agree. To overturn the McDonnells’ convictions, however, would also overturn more than 700 years of history, make bad law and leave citizens facing a crisis of political corruption with even fewer tools to fight it.

The legal principles involved date from England’s Statute of Westminster of 1275, which said that no officer of the king should take any payment for his public duties except what was owed by the monarch.

As modern corruption law developed, the axiom that an official shouldn’t accept gifts for public duties, broadly understood, was a basic feature of American law. The Supreme Court has held that under the Hobbs Act, “the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.”

Otherwise, only the most unsophisticated criminal would ever get caught. A clumsy influence seeker might write an email offering “five diamonds for five votes in Congress,” but the powerful corrupting forces in our society would avoid explicit deals and give lavish gifts tied to meetings and speeches, winking and nodding all the while.

In its Citizens United ruling, the court gutted campaign finance laws. It acknowledged that American politics faced the threat of gift-givers and donors trying to corrupt the system, but it held that campaign finance laws were the wrong way to deal with that problem; bribery laws were the better path. Now, though, the court seems ready to gut bribery laws, saying that campaign finance laws provide a better approach. But if both campaign finance laws and bribery laws are now regarded as problematic, what’s left?

At the Constitutional Convention in 1787, the framers devoted themselves to building a system that would be safe from moneyed influence.

“If we do not provide against corruption,” argued Virginia delegate George Mason, “our government will soon be at an end.”

Today, Virginia’s former governor proposes that there is a “fundamental constitutional right” to buy and sell access. If the court finds in his favor, it will have turned corruption from a wrong into a right.

Americans are sick and tired of corrupt elites leading society. Let's make sure we elect Zephyr Teachout to Congress, first in her June 28 primary and then in November when she'll be up against either Andrew Heaney or John Faso, each of whom has raised around double what she's raised.