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Steven I. Platt: One quid pro quo over the line

Former Virginia Gov. Robert McDonnell and the former first lady of Virginia, Maureen McDonnell, have now been indicted for accepting gifts from a “friend” and the friend’s company. These “gifts include business loans, shopping trips, partial payment for a daughter’s wedding reception” in return for … ?

We don’t know in return for what! It is not clear, although it appears to be in return for a gubernatorial blessing and promotion of the friend and contributor’s product (vitamin supplements) and perhaps increased access to certain government officials. Neither the indictment nor any other source has yet attempted to allege any specific quid pro quo in the traditional form of a government contract, appointment to a board, commission, other office or any tangible reward for this personal and political generosity.

The backdrop for this and the drama associated with it is the multiple investigations of the troubles and travails of Gov. Chris Christie of New Jersey. Gov. Christie’s now former deputy chief of staff as well as his former close friend and political adviser and officials at the New York-New Jersey port authority have been fired from their positions.

In the case of the deputy chief, she appears to have initiated a four-day traffic jam on the George Washington Bridge to punish a mayor for not endorsing the governor’s re-election campaign. The governor’s friend and adviser is no longer advising Christie officially or unofficially as a result of joking about the jam, even though one person died because he couldn’t reach emergency health care in time and schoolchildren were delayed and people couldn’t get to work on time.

The multiple state and federal investigations of this event in New Jersey are now expanding to include allegations that officials including New Jersey’s lieutenant governor threatened to withhold federal funds sent to New Jersey for relief of Hurricane Sandy-related damages if the Jersey City mayor and other mayors did not agree to support a development project favored by Christie. The governor has denied knowledge of any of this. His lieutenant governor has branded the allegations as “illogical” and therefore “inconceivable.”

“Illogical” — not really! Inconceivable — hardly. In fact, most people believe, as columnist George F. Will has pointed out, “Politics in a democracy is transactional.” The real issue is which transactions should be prohibited and which should be permitted.

As Will notes and is well-known, honest and decent candidates routinely solicit the support of interest groups, corporations and wealthy individuals, and such entities regularly solicit the solicitousness of candidates. It is therefore not uncommon for wealthy individuals to support candidates lavishly for elective offices at every level of government with the expectation of receiving, in return, jobs, ambassadorships, appointments to boards and commissions and/or with the hope that the candidate, if elected, will show gratitude for their generosity in the form of implementing policies favored by their financial benefactors.

Is this quid pro quo corruption? Until this question is answered directly by the U.S. Supreme Court, honest Americans running for public office risk criminal prosecution because of the wide discretion prosecutors arguably possess to criminalize the financing of their campaigns and careers.

This is the concern in effect voiced by, among others, “Morning Joe” Scarborough in commenting on the McDonnell case. Conversely, in the absence of a bright line limiting prosecutor’s authority, convictions obtained by dedicated prosecutors trying to root out and punish corruption by aggressively holding corrupt candidates and their contributors accountable are seriously at risk. This is because it is well-settled constitutional law that fundamental due process is denied when the law does not give proper notice of what kind of behavior is proscribed criminally.

It is this notice requirement that circumscribes prosecutorial discretion in corruption cases. This was the reason that the convictions of several high-profile elected officials and corporate officers for “depriving citizens of home services” were overturned on appeal by several federal circuit courts of appeals.

The federal circuit courts, however, differ on what evidence is required to establish bribery involving political and personal contributions. One circuit court has held that to establish mens rea (criminal intent) necessary for a conviction, “an explicit promise” is required to be proven.

Another circuit court, however, has held that “explicit” does not mean an “express” or an actually and clearly stated promise that a particular official action will be controlled by a contribution. This far less rigorous standard holds that “explicit quid pro quo” can mean only a “state of mind inferred from perhaps suspicious circumstances.” This opens the breadth of prosecutorial discretion dangerously beyond the other standard. More importantly, it would tempt zealous prosecutors and perhaps ultimately judges and juries to ascribe unspoken but criminal mental states to elected officials who are already held in low esteem generally.

For example, as one commentator asked with reference to the McDonnell case, is showing up at a reception for the launch of a product by itself a quid pro quo? If so, is President Obama’s going to a Democratic Party fundraiser hosted by DreamWorks and its owner in Hollywood and saying nice things about DreamWorks prohibited? Another example: Is it a criminal violation to follow the common practice of governors with strong gubernatorial offices, including Maryland, to not provide funds in a supplemental budget for a project favored by a legislator if he or she doesn’t support an unrelated bill or project favored by the governor?

The effect of this blurry line has a long and colorful history in Maryland, which can reference the convictions of two governors, several county executives as well as state and federal legislators, including most recently an incumbent state Senator, whose defense to corruption charges was that he was not clever or sophisticated enough to comprehend where the line was between quid pro quo and helping his employer and constituent. A jury of honest citizens sympathized and acquitted the senator.

There is not a long-term or even a temporary solution to the increased visibility of corruption in our system. The problem in a nutshell, as George F. Will pointed out not too long ago, is that “the line is blurry between the exercise of constitutional rights and the commission of a crime.”

That line needs to be straightened and brightened. It needs to be straightened with a vision of what the U.S. Supreme Court recognized in the Caperton v. Massey Coal case but then afterward ignored in the Citizens United case — “whether after a realistic appraisal of psychological tendencies and human weakness” there is such a “risk of actual bias of prejudgment by the official” as a result of campaign contributions and other personal and financial relationships and arrangements that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”

Steven I. Platt, a retired associate judge on the Prince George’s County Circuit Court, writes a regular column for The Daily Record. He can be reached at [email protected]