US Supreme Court to Judges: STOP Prosecutorial Over-reach!


For the third time in three years, the Supreme Court of the United States rejected prosecutors expansive (and sometimes absurd) reading of the laws they use to prosecute people.

This time, the Court interpreted a federal anti-corruption law to prosecute former Virginia Governor Bob McDonnell. In his opinion in McDonnell v. United States (2016), Chief Justice John Roberts specifically noted the Court’s concern “with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute.”

The McDonnell Case

The government alleged that Bob McDonnell engaged in criminal conduct when he and his wife accepted gifts, loans and other personal benefits from a local businessman., McDonnell, meanwhile, maintained that his actions, such as setting up meetings, were political courtesies and did not amount to using his position to influence government matters. The key question before the Court was whether “official action” under the Hobbs Act and other relevant federal fraud statutes is limited to exercising actual government power, threatening to exercise such power, or pressuring others to exercise such power.

The Supreme Court adopted a narrow interpretation of the statute. “Taking into account the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we reject the Government’s reading of §201(a)(3) and adopt a more bounded interpretation of ‘official act,’” the Court held. “Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”

In his opinion, Chief Justice John Roberts further noted that “conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time.” He added: “The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm.”

The Chief Justice went on to note the potential implications of the government’s overly broad interpretation of the anti-corruption law, explaining:

The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse. This concern is substantial.

What it all Means

The McDonnell decision reflects the Supreme Court’s continuing disapproval of prosecutorial over-reach.  As regular readers of this column know, when it comes to elected officials, prosecutors investigate people, not crimes.  They creatively reinterpret laws in unexpected and unintended ways and highlight any salacious information they can use to get a headline and inflame judges and jurors.

Fortunately, many courts, including the United States Supreme Court act as the adult in the room to stop an otherwise out of control justice department.  The McDonnell case reads a lot like its 2015 decision in Yates v. United States. In that case, the Supreme Court held that prosecutors overreached when they charged a Florida fisherman who destroyed several dozen undersized fish with violating the Sarbanes-Oxley Act, which was enacted to curb corporate fraud. The justices concluded that the anti-shredding provision could not be applied to Yates’ conduct, rejecting the government’s argument that Sarbanes-Oxley generally prohibited the spoliation of evidence and broadly included all physical items that might be relevant to any matter under federal investigation.

In 2014, the Supreme Court chided prosecutors for attempting to use the Convention on Chemical Weapons to prosecute a simple assault involving a scorned lover. As the Chief Justice wrote in Bond v. United States, “the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.”

Readers can find a further discussion of McDonnell v. United States on the Scarinci Hollenbeck Constitutional Law Blog.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs. He is a key longtime ally of U.S. Senator Bob Menendez.

US Supreme Court to Judges:  STOP Prosecutorial Over-reach!