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A unanimous verdict: US pollies can be bribed, if you play it right

Bob McDonnell, with his wife Maureen, left, celebrates his election as governor of Virginia in November 2009. The couple were indicted on corruption charges in January 2014. Photo: New York Times Bob McDonnell, centre, leaves the Supreme Court in April. Photo: New York Times
Nanjing Night Net

Corridors of power: Oklahoma governor Mary Fallin, left, talks to Bob McDonnell during the National Governors Association’s winter meeting in Washington in 2013. Photo: New York Times

Bob McDonnell outside the US Supreme Court in April. He has been cleared by a unanimous verdict of eight justices. Photo: New York Times

Bob McDonnell (with papers) at a conference in Las Vegas in 2012. Photo: New York Times

The Virginia state Capitol in Richmond. There are no restrictions on what gifts family members of Virginia office-holders can accept. Photo: New York Times

Washington: The governor got to drive a Ferrari. He was at the beachside clambake – where they cracked a $US5000 ($6750) bottle of cognac and poured what was left into the fire. And after exclusive rounds of golf he was allowed to blitz the resort store – with his businessman host picking up the tab.

Throw in a Rolex for him; and for the missus, $US20,000 worth of designer dresses from Oscar de la Renta, Louis Vuitton and Bergdorf Goodman, and there’s more than a whiff of corruption – yes?

Hold on – not done yet … a couple of undocumented loans worth $US70,000 from the same businessman, to get the governor and his sister out of a hole on their real estate investments; and another $US50,000 for his wife to buy shares in the businessman’s company?

Do we have a case yet?

Ahem – a few more items.

The businessman pays $US15,000 for the catering at one of the governor’s daughters’ weddings; he ponies up $US10,000 as a wedding gift for a second daughter; and wouldn’t you know it – just as the girls are in a funk over how to get to a bachelorette party in Savannah, Georgia, up pops Mr Businessman with a couple of airline tickets.

There’s a weeklong stay for the whole family at a mountain resort in Virginia – with a $US2300 boat hire thrown in.

We’re talking about Bob McDonnell, the disgraced former Virginia governor, and his relationship with Jonnie Williams, a shyster businessman who wanted the state to wave through approval of a dodgy tobacco extract which he planned to market as an over-the-counter dietary supplement.

In return for gifts totalling $US175,000, McDonnell hosted a lunch at the governor’s mansion to promote the extract – allowing Williams to supply the guest list; in her role as Virginia first lady, his wife Maureen pitched the product at interstate functions; and the governor set up meetings with state officials for Williams.

Put all that before the US Supreme Court and you’d be wrong if you thought the governor and the first lady might soon be behind bars. Incredibly, in a unanimous decision, eight justices found the governor’s conduct to be distasteful – tawdry, even – but illegal? Get out of here!

It happened this week. On Monday, the court threw out McDonnell’s lower court convictions, for which he had been given a two-year jail term; and a lower court  is now expected to overturn the wife’s conviction and set aside her jail term of a year and a day.

Decoding the legal niceties of the ruling, former Obama White House counsel Robert Bauer explained what had just happened – the court was saying that it is not, repeat not, a crime for someone to pay for access to government decisionmakers; “That political favour-seeking fuelled by cash and gifts may well be repellent, but there was only so much the legal system can – or should – do about it.”

The judges’ bizarre logic triggered a wave of indignation – much of which revolved around a notion that it was hardly surprising that politicians and elites were on the nose in the US, if the judiciary was to cover such sleazy behaviour from those entrusted with high office.

Jeffrey Toobin, CNN legal commentator, sensing how the decision might go: “Citizens United let rich people buy candidates; now they may be able to purchase office-holders too.”

Petula Dvorak, in The Washington Post: “The ravenous way he devoured the shiny things dangled before him, the way he refused to acknowledge during the trial that his behaviour was distasteful and the way he publicly degraded his wife during the trial was enough to show he’s guilty, guilty, guilty of moral transgressions far more weighty than those we regulate with law.”

John Nichols, in The Nation: “The Supreme Court essentially just told elected officials that they are free to sell access to their office to the highest bidder – if you want the government to listen to you, you had better be prepared to pay up.” McDonnell ruling has opened up a can of worms that the court did not pay careful attention to. https://t.co/[email protected]— Democracy 21 (@FredWertheimer) June 28, 2016

Fred Wertheimer, president of Democracy 21, an NGO that campaigns against the power of money in politics: “This ruling opens the door to a ‘pay to play’ culture in government, so long as the gift receiving official does not make a government decision or take an official government action.”

Lisa Gilbert, director of Public Citizen’s Congress Watch division: “The repercussions are massive – this case was a critical test and the court failed.”

The initial McDonnell trial was spectacular on two counts – the un-heroic ease with which the governor threw his wife under the bus, blaming her for much of what befell them; and his insistence that he had done nothing wrong because he enjoyed the same First Amendment protection as did politicians receiving donations, for which their donors expected them to make calls and set up meetings. It followed that if McDonnell was to go down, many, many others would have to go down with him. Our take on the #SCOTUS#McDonnell ruling (we filed an amicus): Disappointing but it has a silver lining. https://t.co/utJvgXEXrN— Public Citizen (@Public_Citizen) June 27, 2016

Seriously disturbing was a reference in the decision, authored by Chief Justice John Roberts, that seemed to accept that many public officials were on the take – and that there was not a lot wrong with this.

He writes: “Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time” and if the McDonnell conviction was to stand, it would “cast a pall of potential prosecution over these relationships.”

The pivot point in Justice Roberts’ decision was the definition of an “official act”.

Seeming to ignore the power of a governor’s referral within the bureaucracy and an implicit message that whoever he referred should get what they wanted, the chief justice argued that in terms of the gifts being the “quid” part of a quid pro quo, the “quo” had to be a formal official act, which he described in these convoluted terms – “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”.

Invoking the frequent movie scene of the smack of a gavel confirming a decision made, The New Yorker’s Amy Davidson attempted a translation: “In other words, if no gavel is involved, it will probably be hard to prove bribery after this ruling.”

Elaborating on the role of the “conscientious public official”, Justice Roberts explains: “The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.”

But who’d have thunk that “acting appropriately” would include the Ferrari ride, glugging $US5000 cognac, the missus getting dolled up in Oscar de la Renta and Louis Vuitton and all those wedding indulgences?

Similarly, who knew that in calling officials in the bureaucracy and giving over the governor’s mansion for a gig that obviously had a commercial purpose, that the governor somehow could be acting officially, in some kind of unofficial way?

And if the bureaucrat to whom McDonnell had referred Williams could promptly dismiss Williams as a quack, why did McDonnell not pause to wonder about the purpose of that avalanche of gifts? And why the couple’s efforts to avoid disclosing them?

DC lobbyist Paul Miller had a bet each way on the court’s ruling – it was the right decision because the McDonnell trials had been a “political witch hunt”; but on the other hand “too many lobbyists and donors are now playing loosey-goosey with things. Bob McDonnell is a smart man – he should have known you don’t take gifts like a Rolex.”

The punchline in all of this is that under Virginia law the governor’s acceptance of the gifts was perfectly legal; less so under federal law – unless, that is, you can convince eight of the brightest legal minds in the country that repeatedly putting your hand in someone else’s pocket is not a crime.

This story Administrator ready to work first appeared on Nanjing Night Net.

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