The McDonnell Case: Supreme Court Weighs Limiting Bribery Statute

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2 Responses

  1. Bill Wilson says:

    We’ve been here before: McNally, Skilling and the mail/wire fraud statutes and loyal services prosecutions. The challenge for the Court is how to craft a limitation for governmental misconduct that doesn’t exist when other actors are the defendants. The mail and wire fraud statutes are of necessity broad because the types of conduct they intended to control represent virtually endless creativity on the part of charged defendants in devising their “schemes or artifice to defraud”. The courts have been relatively generous in allowing creative applications of these fraud statutes for regular folks who engage in schemes designed to obtain money or other value through nefarious means. One could make the argument that government officials are no less creative in devising ways for those with whom they interact to enrich them in ways potentially detrimental to generally accepted notions of proper governmental functioning. In resolving this issue, there is no reason to differentiate between the defendant who is prosecuted for unduly influencing a purchasing agent to buy the defendant’s inferior product by paying a kickback, and the government official who accomplishes the same thing by “introducing” the seller, carrying the imprimatur inherent in the introduction by a powerful official, because the official received gifts or other value. While there is merit in the concerns about overbreadth, extreme care must be taken not to handcuff prosecutors who properly serve as a control mechanism on corrupt legislators or executive branch members. Separation of powers shouldn’t be taken to mean each branch has to have its own police and prosecutors to satisfy the Constitution. Indeed, wouldn’t it raise equal protection issues to have such divergent standards for Governor McDonnell vs. ordinary fraudster John Doe?

  1. May 20, 2016

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