The hit Broadway musical Hamilton depicts a backroom dinner meeting between then Congressman James Madison (Virginia) and the titular Secretary of Treasury, during which Madison proposes a “quid pro quo”: Hamilton will convince President George Washington to move the nation’s capital to the Potomac in exchange for Madison providing the congressional votes needed to pass Hamilton’s debt plan. The ostentatious Thomas Jefferson, Madison’s fellow Virginian, proudly claims to have orchestrated the dinner as a favor to Hamilton, and perhaps because he would like to “work a little closer to home.”
Hamilton’s contemporary retelling of an old story feels particularly at home as a reflection of today’s politics. Consider the case of yet another Virginian: former Governor Robert McDonnell, who was convicted of bribery charges in 2014 for allegedly accepting payments and gifts in exchange for a bit of “Jeffersonian” event planning on behalf of Virginia businessman Jonnie Williams.
Federal prosecutors alleged that McDonnell contacted Virginia officials on Williams’ behalf, arranged meetings with officials to discuss Williams’ products, and hosted events for Williams’ company at the Governor’s Mansion. According to the Government, these calls, meetings, and events were “official acts,” which McDonnell committed or agreed to commit in exchange for $175,000 in loans and other benefits from Williams in violation of the federal bribery statute, 18 U.S.C. §201. Section 201(a)(3) defines “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” At trial, the District Court instructed the jury that the term “official acts” encompassed “acts that a public official customarily performs,” including acts “in furtherance of longer-term goals” or “in a series of steps to exercise influence or achieve an end.”
Recently, the United States Supreme Court unanimously held that the District Court’s instructions on “official act” were overly broad, and thus permitted the jury to convict McDonnell for potentially lawful conduct. In McDonnell v. United States, the Court reasoned that merely setting up a meeting, hosting an event, or contacting an official is not enough to qualify as an official act under 18 U.S.C. §201(a)(3). Rather, the official must make a decision or take some action on the matter, or agree to do so. Accordingly, the Court found that the District Court’s instructions were deficient on the grounds that they failed to:
- adequately explain to the jury how to identify the “question, matter, cause, suit, proceeding or controversy”;
- inform the jury that the “question, matter, cause, suit, proceeding or controversy” must be more specific and focused than a broad policy objective; and
- instruct the jury that, to convict McDonnell, it was required to find that he made a decision or took an action—or agreed to do so—on the identified “question, matter, cause, suit, proceeding or controversy.”
The Court overturned McDonnell’s conviction, finding that the deficiencies in the District Court’s instructions made it possible for the jury to convict McDonnell even if he committed no crime.
The Court’s narrow interpretation of “official act” ensures that routine political interactions between “conscientious public officials” and their constituents remain outside the scope of conduct punishable under the federal bribery statute. To prove an “official act,” the Government must show that the parties got to “yes,” rather than just assume that it happened.