White-Collar Crime

Another Reason To Worry About A Trump Presidency

If Trump gets to decide what's a crime, we should probably be scared.

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640px-Bob_McDonnell_by_Gage_SkidmoreFormer Virginia Governor Bob McDonnell’s case was argued last week in the Supreme Court.

The timing underscores one tragic part of the case; at the same time that Donald Trump is emerging as the presumptive nominee of the Republican party, its one-time rising star is in the Supreme Court fighting for his freedom.

The big question in McDonnell, as in so many federal criminal cases being argued before the Supreme Court and the circuits, is whether the Court will interpret federal criminal statutes in such a way as to cabin the discretion of the federal government.

According to one amicus brief, the Fourth Circuit’s decision in the case (internal quotations omitted):

took a core feature of representative democracy—access to public officials — and turned it into a federal felony if a jury can infer a link between that access and a thing of value. The court greatly expanded criminal liability by ruling that an official act — which serves as the quo in an unlawful quid pro quo — is any action that, by settled practice, public officials customarily perform on any question or matter.

That amicus brief itself was extraordinary — it was submitted on behalf of John Ashcroft, Greg Craig, Lanny Davis, Fred Fielding, Mark Filip, C. Boyden Gray, Michael Mukasey, Ted Olson, and Larry Thompson, among others.

The Justices noticed that a who’s who of former federal officials thought that this case presents a hard question about overbreadth. As the federal officials’ amicus frames it, the only official acts at issue here were:

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inviting a supporter (the alleged bribe payor) and guests of the supporter’s choosing to a reception at the governor’s official residence; asking another official to send an aide to a meeting with the supporter; asking a government lawyer (the official’s counsel) to meet with the official to discuss a topic involving the supporter; asking questions of the supporter during a question-and-answer session at a privately funded luncheon; and suggesting a meeting between the official’s subordinates and the supporter

And, predictably, that’s where the Court’s attention went.

The Chief Justice asked the government:

if you have a governor whose priority is jobs for his State and there’s a CEO who’s thinking about locating a plant in his state, but he can only do it he says, if he gets tax credits from the State. So the governor is talking to him, and he says, look, why don’t you come down to my… trout stream and we’ll go fishing and we’ll talk about it. And the governor does that. He has a nice day fishing for trout, and they talk about whether they can get tax credits… if the CEO opens his plant in the State. Now, is that a felony?

Of course, the answer to that question really ought to be no. And counsel for the government recognizes that. But there’s only one way to distinguish that case from McDonnell, which is right where the government goes:

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if you change the hypothetical and said instead of an afternoon of trout fishing, I’ll fly you out to Hawaii and you and your family can have a vacation, and during that time we can go over my policy.

This is closer to McDonnell; the size of the benefit conferred was significant. But, of course, that’s a separate element than whether what McDonnell did was an official act. What’s the government’s explanation for why the size of the benefit changes whether something is an official act?

“the reason why I changed the hypothetical to involve a larger quid is because the implications of carving something out from ‘official action’ mean that it can be sold, and that it’s lawful to be sold. And when you change the trout fishing to a trip to Hawaii, it becomes more nefarious…”

This is exactly the problem. “Nefarious” is not a statutorily defined term, and if it were it would be void for vagueness. By making whether something is illegal hinge on whether it’s “nefarious,” you’re simply deciding that the only meaningful limit on what counts as criminal is the intuition of the executive.

And, given who may be in the White House this time next year, there may be reason to be worried about giving that kind of power away.

Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is mkaiser@kaiserdillon.com He’d love to hear from you if you’re inclined to say something nice.

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