Supreme Court struggling to define public corruption

Fifty-two years ago, Associ- ate Justice Potter Stewart gave the Supreme Court of the United States a common-sense standard that, it appears, the current court has forgotten.

Stewart wrote that he found it difficult to define hard-core pornography, “but I know it when I see it.”

Two weeks ago, the court was hearing arguments in a case involving corruption, not pornography. Based on questions and comments by a majority of the justices, they have become so consumed with giving corruption a legal definition that they can’t see it when it is right under their noses.

Former Virginia Gov. Bob McDonnell was convicted in 2014 of accepting about $175,000 in gifts and loans from a businessman in exchange for promoting a dietary supplement. The conviction was upheld by an appeals court. McDonnell’s wife, Maureen, was also convicted, but her case wasn’t before the court.

During McDonnell’s trial, prosecutors described the couple’s lavish lifestyle of sweetheart loans, luxurious vacations, designer clothing and shoes valued at $20,000 for Mrs. McDonnell and a $6,500 Rolex watch for the governor, $15,000 for their daughter’s wedding and more – all received from businessman Jonnie Williams.

Williams wanted McDonnell to press researchers at Virginia state universities to conduct studies that could help win U.S. regulatory approval for Anatabloc, a product of Williams’ company, Star Scientific.

Prosecutors said McDonnell usually responded within days of each gift to help garner support for Williams’ supplement or to set up meetings with state officials.

The prosecutors painted a convincing picture of a politician on the take, and the jury got it. McDonnell was convicted of 11 corruption counts including conspiracy, bribery and extortion, and he was sentenced to two years in prison. Mrs. McDonnell was found guilty of nine criminal counts and received a one-year sentence. Neither has spent any time in jail while pursuing their appeals.

A three-judge panel of the appeals court in Richmond got it, unanimously upholding McDonnell’s conviction.

THE SUPREME COURT’S TAKE

Who doesn’t get it? Chief Justice John G. Roberts and associate Justices Stephen G. Breyer, Anthony Kennedy, Samuel A. Alito Jr., and, to some extent, Elena Kagan.

Justices Sonia Sotomayor and Ruth Bader Ginsberg seem to recognize that elected officials shouldn’t be accepting expensive gifts one day and interceding for the gift giver the next day. Justice Clarence Thomas was characteristically silent. The late Antonin Scalia contributed as much as Thomas, when Roberts invoked his name in noting that Scalia was willing to declare a federal anti-corruption law unconstitutionally vague in 2010.

That’s not surprising, given that when Scalia was alive, he held himself to a flexible standard when accepting favors. He saw no problem in accepting free hunting trips, even when one of those trips was with Vice President Dick Cheney at a time when the court was scheduled to hear an important case involving Cheney’s development of energy policy.

The comments of some of the justices are downright alarming. Kennedy suggested that a senator accepting a lunch from a constituent wouldn’t know if what he was doing was legal if the court upheld McDonnell’s conviction. If a senator can’t tell a lunch from a Rolex, maybe he should find another line of work.

Roberts suggested that a businessman seeking a tax break in return for opening a new business might be afraid to invite a governor on a fishing trip if the court didn’t overturn McDonnell’s conviction. If the businessman and governor don’t know the difference between a fishing trip and paying $15,000 to cater the governor’s daughter’s wedding, maybe they should just meet in the governor’s office to discuss the deal. Maybe that’s where the state’s business should be conducted in any event.

And Breyer said upholding McDonnell’s conviction “puts at risk behavior that is common.” Look again at what McDonnell accepted from Williams. If that’s common behavior, it should be at risk.

Are the justices na Øve, or are they obtuse, or do they subscribe to the age-old mantra of crooked politicians everywhere – from Tammany Hall to Chicago City Hall to the Mahoning Valley – to the victor belong the spoils?

Whatever the explanation, this appears to be another looming victory for the activist court of Chief Justice Roberts. It’s a court where money has become speech, where corporations have been defined as people and, now, where elected officials would be free to accept watches, vacations and cash, and it is no longer a bribe unless the giver or taker says it’s so. Clearly and unfortunately this court doesn’t know a bribe when it sees it.