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McDonnell v. United States provided a small dose of clarity to the issue of “official acts” under federal anti-bribery law, but confusion remains regarding some issues, such as what it means to “exert pressure.” The ambiguity left in McDonnell’s wake means that criminal defense lawyers will be responsible for waging the fight to clarify the boundaries of corruption prosecutions.
Board member Tim O'Toole's written statement to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security regarding proposed changes to the laws governing public corruption charges, as outlined in the Clean Up Government Act of 2011 (H.R.2572).
Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Center for Competitive Politics in support of appellant.
Argument: In Skilling v. United States(2010), the Supreme Court held that to prove “honest services” fraud under 18 U.S.C. §1346, the government must prove bribery and quid pro quo—an exchange of a thing of value and an official act taken in response. In this case, the district court’s instructions read the bribery requirement out of the statute, permitting the jury to convict the appellant without any showing of quid pro quo, but only a unilateral “intent to influence.” The lower court’s interpretation of the statute threatens to chill, even criminalize, a broad range of innocent conduct, particularly campaign contributions.
Brief of Amici curiae National Association of Criminal Defense Lawyers and Rutherford Institute in Support of Petition for Certiorari.
Argument: The Court should grant certiorari to make clear that the honest services fraud statute requires the government to prove bribery. The honest services fraud statute is unconstitutionally vague unless limited to bribery, as Skilling requires. The standard applied in this case to prove honest services fraud is inconsistent with this Court’s rulings. The admission of evidence of legal and constitutionally protected campaign contributions in this case, in contravention of this Court’s rulings, will criminalize, and thereby chill, constitutionally protected conduct.
