0:00:00.0 Speaker 1: We'll hear an argument this morning in case 15-474 McDonnell versus United States.

[music]

0:00:10.0 Leon: Hey everyone, this is Leon from Fiasco and Prologue projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about McDonnell v. United States. The case centers around a sitting governor Bob McDonnell of Virginia, granting political favors in exchange for a series of gifts.

0:00:28.2 Speaker 3: Prosecutors, say McDonnell and his wife received a free vacation at a multi-million dollar home along with the use of a Ferrari. They allegedly got $15,000 to help pay for catering their daughter's wedding, and $20,000 to pay down credit card debt.

0:00:42.7 Leon: It might seem intuitive that this is bribery and therefore illegal. The Supreme Court does not see it that way. In a unanimous decision, the court determined the governor's favors weren't official acts, and on that basis, overturned his conviction by a lower court... This is 5-4. A podcast about how much the Supreme Court sucks.

0:01:05.4 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our nation to collapse, like my wife when she works out after forgetting to eat. I'm Peter, I'm here with Rhiannon.

0:01:17.0 Rhiannon: Hey, solidarity. It's hard to remember to eat.

0:01:20.9 Peter: And Michael.

0:01:21.7 Michael: Hi everybody.

0:01:22.6 Peter: Disagree. It's not hard to remember to eat.

0:01:26.6 Michael: Your body always sends you helpful reminders, like hunger pangs.

0:01:31.0 Peter: What's hard is to be legally and morally obligated to the well-being of another person, and that person is going on 6:00 PM having eaten just a carrot that day, trying to do a yoga flow.

0:01:49.0 Michael: Peter when your wife collapsed, did you just sit here and berate her that she took an oath to care for you? What are you thinking? You have a responsibility to me.

[chuckle]

0:02:01.0 Peter: I shouldn't have to remind her, I just throw the marriage certificate at her, slide it under her unconscious head...

0:02:07.5 Rhiannon: Is she eating now?

0:02:08.6 Peter: Yeah, I fed her several cheese balls and she is now up and alert.

0:02:13.3 Rhiannon: That's amore.

0:02:15.4 Peter: Yeah. Anyway, welcome to the new year. A whole new year of 5-4. And today's case, McDonnell v. United States, this is a case about bribery, after doing the show for nearly three years now, it's rare that there is a topic we haven't covered, but we have not discussed the bribery of public officials, most people I think are aware of the various ways in which the Roberts Court has facilitated government corruption by loosening restrictions on campaign finance, for example, but what has often flown under the radar are the ways in which they have functionally legalized many types of out and out bribery...

0:03:02.7 Rhiannon: Yeah.

0:03:03.7 Peter: In this case, former Virginia governor Robert McDonnell was prosecuted, tried and convicted by a jury of bribery. In exchange for various financial gifts, McDonnell had helped a tobacco/nutritional supplement executive secure publicly funded research related to a compound found in tobacco. He appealed his conviction on the basis that he did not technically violate the Bribery law. What he claimed was that all he did was make some calls and set up some meetings for his tobacco executive buddy, which he argues is not enough to qualify as a quid pro quo bribery and the Supreme Court unanimously agreed.

0:03:48.4 Rhiannon: That's right. 2023 special, it's a bribery case. It's a unanimous decision.

0:03:56.6 Michael: Alright. We love it when the ideologically diverse Supreme Court gets all on the same page...

0:04:02.4 Rhiannon: Yeah.

0:04:02.7 Michael: It says.

0:04:03.5 Rhiannon: Here they agree.

0:04:05.1 Michael: Bribery is good.

0:04:07.6 Peter: Finally, some consensus.

0:04:11.2 Rhiannon: Okay, yeah, so let's jump in. Let's just do a run down of the facts, and I want everyone listening to ask themselves if they think this is corruption, these acts are acts of bribery of a public official, because the facts are agreed upon, right? There's no conflict about what happened. The only conflict is about whether the Supreme Court thinks this behavior should count as corruption, as bribery. So let's get in here. Republican Bob McDonnell was elected Governor of Virginia in 2009, and he took office in 2010. His campaign slogan was, "Bob's for jobs". This is a time of economic recession in the country, he's running on improving the economy in Virginia platform.

0:04:54.8 Peter: What a quaint time.

0:04:56.0 Rhiannon: Yeah, yeah.

0:04:56.7 Peter: Bob's for jobs, wins.

0:04:58.1 Rhiannon: Yeah. That's all it takes. He and his wife Maureen, were familiar with public service though. Bob had been a long-time State Rep in Virginia, and then the Attorney General of Virginia. But kind of from the beginning, it's clear that this guy and his family have financial problems. In 2010, they had $90,000 in credit card debt, and a couple of years later, a real estate business that Bob McDonnell ran with his sister had debt totalling 2.5 million. So enter one Jonnie Williams, the CEO of Star Scientific, which was a company that had been a tobacco company, but by this time was working on developing and marketing a nutritional supplement that was made from a tobacco derivative.

0:05:43.4 Peter: Can we pause and talk about how fake this company is. It literally sold cigarettes, I believe.

0:05:51.4 Rhiannon: Yes, they did.

0:05:52.0 Peter: And then moved away from that into nutritional supplements.

0:05:55.9 Michael: Right.

0:05:56.2 Rhiannon: Yeah.

0:05:56.5 Michael: After this case, they ended up shelving their products, right? The one that's at issue here is called Anatabloc that's based on this compound anatabine that's in tobacco. The other nutritional supplement health product that they had to discontinue after this negative publicity was called CigRx.

[laughter]

0:06:23.7 Michael: C-I-G-R-X. Are you fucking kidding me?

0:06:28.7 Peter: How's it legal to name your products CigRx?

0:06:33.0 Rhiannon: Yeah.

0:06:33.3 Michael: CigRx.

0:06:33.8 Peter: Just CIG Medicine. Just cigarette medicine.

[chuckle]

0:06:37.7 Rhiannon: Like so fake company, but so American fake company, right?

0:06:42.1 Michael: Oh, yes. Oh, yes.

0:06:43.0 Peter: CigRx sounds like a fake product in a movie or a book.

0:06:48.0 Rhiannon: Yes.

0:06:48.1 Michael: Yes.

0:06:48.0 Peter: About a dystopian future.

0:06:49.4 Rhiannon: Yes, exactly, right. So yeah, at this time they are working on developing and marketing this nutritional supplement. It's made from a tobacco derivative, but this snake oil needed research backing. Jonnie Williams really needed the lift in the company's stock that would result if a research university announced a trial launch of this supplement. So Williams starts meeting with Governor McDonnell and his wife, and they start making plans to work together. They first meet in 2009 during McDonnell's campaign for governor when Williams offered McDonnell transportation on his private jet to assist the campaign. McDonnell agreed to introduce Williams to Virginia's Secretary of Health and Human Resources. That meeting didn't end up doing anything for Williams because the Secretary of Health and Human Resources was really skeptical of the science behind this supplement. There's some discussion in emails of Jonnie Williams helping Maureen McDonnell, the governor's wife, with the clothing budget for the inauguration.

0:07:53.5 Rhiannon: That wasn't ever clearly proven, but they did clearly strike a deal the next year when the governor's wife told Williams she would get him a seat next to the governor at an upcoming political rally. And in return, Williams took her on a shopping spree to the tune of $20,000. She was at Louis Vuitton. She was at Oscar de la Renta. And so Jonnie Williams gets a seat next to the governor at the next big rally. The governor and his wife also hosted a big launch event for the supplement at the governor's mansion, where $25,000 checks were handed out by Williams to state researchers at UVA and VCU. The McDonnells ask for a $50,000 loan from Williams after that launch party, but Williams complains that the research isn't getting up and going fast enough. So Maureen McDonnell facilitates meetings between Williams and officials at UVA and VCU to get the research study started. And what do you know? Williams sends over $50,000. There are multiple loans over this period, given by Williams to the McDonnells, as well as Williams paying for their daughter's wedding, taking the governor on golf trips, lending the governor his Ferrari, letting the McDonnells stay at his vacation home, gifting them iPhones and clothes, and a Rolex watch that was engraved with the words, 71st governor of Virginia.

[chuckle]

0:09:25.4 Peter: Again, worth noting. This is like people who were in all sorts of personal debt, like 90K of credit card debt. And 2.5 mil in a business.

0:09:36.9 Rhiannon: Yes.

0:09:37.2 Peter: And they're like finagling their influence for Rolexes.

0:09:40.6 Michael: Yeah.

0:09:40.9 Rhiannon: Yeah. That's right. Yep.

0:09:42.6 Peter: Just no concern about the actual debt. They're just trying to pat up the gifts. It's just sort of sick.

0:09:48.6 Rhiannon: Yeah. Extremely that big.

0:09:49.8 Peter: I don't know if they're not concerned or if they are just so shallow that they have to grab at the Rolexes, the Ferraris, et cetera.

0:10:00.4 Michael: Yeah.

0:10:00.7 Rhiannon: And I think that's what it is. And so the whole time they're being like kind of wined and dined by Williams and getting all these gifts from him, Governor McDonnell is talking about this supplement with various government officials in Virginia. He's talking about how state employees should start taking the supplement. He's following up with public health officials about what's going on with the research. And Maureen, his wife, is buying, selling, and gifting Star Scientific stock. So a couple of weeks after Governor McDonnell leaves office and the McDonnells move out of the governor's mansion, they are indicted on federal charges of corruption for accepting improper payments and gifts from Jonnie Williams. They go to trial, like Peter said, and a jury finds them guilty, sentences them to prison, but they appeal their conviction. By the way, the Fourth Circuit, the appellate court affirms that conviction says, "Yeah, sounds right." But the McDonnells appeal it from there, and that's how we get to the Supreme Court. Now, one more kind of funny note that this story reportedly only breaks, the feds only get a tip off after a chef in the governor's mansion [chuckle] is accused of stealing food [chuckle] and in like retaliation or whatever, he basically leaks the story that Jonnie Williams had paid for McDonnell's daughter's wedding.

[laughter]

0:11:33.1 Peter: That's so fucking good.

0:11:34.8 Rhiannon: Got his ass. Yeah. [chuckle]

0:11:36.4 Peter: You can just see like, they're like, "Sir, we've caught you stealing." And he's like, "Are you fucking kidding me? I took some food. Do you know where the governor's money comes from?"

[laughter]

0:11:44.5 Rhiannon: Right. Exactly. [chuckle]

0:11:45.6 Peter: Blows the whole thing up. It was about to be like the best revenge arc of all time until the Supreme Court steps in and ruins it.

0:11:55.1 Michael: Yes.

0:11:55.8 Rhiannon: Yeah.

[laughter]

0:11:56.7 Peter: Now folks, you might be picking up on something that I immediately picked up on. When we prepped this, and I heard about the wife receiving these gifts from this guy. I said it sounds a little bit like they're fucking.

0:12:11.1 Michael: Yeah. You did say that.

0:12:11.3 Rhiannon: You did say that.

0:12:12.3 Peter: I said it immediately.

[laughter]

0:12:15.3 Peter: Yeah. Look, if I was the governor of the state, you can bribe me all you want. You start buying my wife fur coats? You kidding me, bro? You think I'm gonna let some fake tobacco company executive buy my wife fur coats?

0:12:31.1 Rhiannon: Oscar de la Renta? No, no, no, no, no.

0:12:33.6 Peter: Absolutely not. Absolutely not. And then we found out that one of the wife's defenses, because the wife and the husband sort of, they lawyered up separately. One of the wife's defenses was just, "Look, I wasn't being bribed. I had a thing for this guy."

[chuckle]

0:12:49.4 Rhiannon: Yeah.

0:12:49.4 Michael: Right. Yup.

0:12:51.9 Peter: He was showering me with gifts because we were horny, not because I was accepting bribes.

0:12:57.7 Rhiannon: [chuckle] These were gifts d'amour, okay?

0:13:00.5 Peter: And I would have liked to see the Supreme Court address that argument directly. [laughter]

0:13:03.3 Michael: Right. This was foreplay. [chuckle] This was rich people foreplay.

0:13:08.0 Rhiannon: Yeah, she said she hated her husband. She said the marriage was basically over, we were barely speaking. Tobacco executive is, a little grass is greener on the other side, right? [chuckle]

0:13:20.6 Peter: Imagine though, the downgrade of... Your husband is the governor of Virginia, and then the next guy you sleep with is the head of a tobacco/nutritional supplement like fucking MLM or whatever this is. [laughter]

0:13:39.2 Michael: Right. Someone who's gonna be hawking drugs on Alex Jones or whatever?

0:13:43.7 Rhiannon: Right. Yes.

0:13:44.6 Peter: Right. Right. I get that he's rich, but come on [laughter] So let's talk about the law. The law in question is primarily The Hobbs Act, which has a provision that applies to the bribery of public officials. The law says that if you are a public official, you cannot receive anything of value in exchange for "Being influenced in the performance of any official act." So McDonnell and his wife received $175,000 worth of gifts and other stuff. In exchange, he set up meetings, hosted events for the company at the governor's mansion, contacted government officials to press the company's agenda, et cetera. Pretty basic quid pro quo situation. Open and shut, right?

0:14:36.5 Rhiannon: You'd think so.

0:14:37.8 Peter: But McDonnell argues that none of these things qualify as "official acts", remember it's only illegal to accept gifts in exchange for being influenced in the performance of any "official act". He says that the term "official act" shouldn't include things like setting up meetings or hosting events, but only specific decisions that the government itself actually makes, like awarding a contract or passing legislation. And the Supreme Court unanimously agrees with that, with the opinion being written by Chief Justice, John Roberts. The opinion starts off with a tortured textual analysis. One of the worst things I've ever read in my life. So bear with me for a second. The law defines an "official act" as any decision or action on any question, matter, suit, cause, proceeding or controversy, which may at any time be pending or which may by law be brought before any public official. A mouthful, but the bottom line is that the law is saying, a public official cannot accept payment in exchange for taking action on official matters. So the court is trying to figure out whether any of the things the governor did for the company, setting up meetings, hosting events, networking with government officials, et cetera, qualify as taking an action on the matter of the relevant tobacco research.

0:16:14.0 Peter: Now, if you're hearing those words literally in your brain, [chuckle] it might seem like the governor violated the law. He set up meetings, he hosted events, he contacted officials on Williams's behalf. Those are actions and they are concerning the matter of the tobacco research.

0:16:35.6 Rhiannon: A to B.

0:16:36.0 Peter: But the court says, "No, they don't count." Roberts says that setting up meetings or hosting events or otherwise trying to promote the study, does not qualify as an action on the issue of whether to initiate the study, but... Yes, it does. [chuckle] It's an action designed to help initiate the study. I guess the only analogy I can think of, is that if you were walking across the room to press a button and you're lifting up your finger above the button and then pressing down, Roberts is like, "No, no, he's not [chuckle] taking... He's not doing it yet. He's not doing it yet."

0:17:22.2 Michael: Until your finger makes contact with the button.

0:17:24.7 Peter: Or is it perhaps when the button is all the way pressed down. [chuckle]

0:17:29.6 Rhiannon: Right, right. Yeah.

0:17:30.5 Michael: You might not know this, but your finger never actually makes contact with the button, it's the strong nuclear force in the weak.

[laughter]

0:17:36.6 Rhiannon: You're just promoting pushing the button.

0:17:39.8 Peter: Picture a diagram in the Supreme Court reporting of a button and how it works. [chuckle] This is like this through-the-looking-glass moment, when you're reading this and this unanimous court is just sort of telling you that the words you're reading don't mean what we all know that they mean.

0:17:57.3 Rhiannon: Exactly.

0:17:57.4 Michael: An argument that you need very special training to understand. Either like the Harvard Law School, or jamming a screwdriver through your eye socket into your brain and then rotating it really fast around.

0:18:11.0 Rhiannon: That's the only two ways.

0:18:12.2 Michael: Only two ways.

[laughter]

0:18:15.3 Peter: I think it is time for a quick break.

0:18:19.3 Rhiannon: Okay. We are back.

0:18:20.9 Peter: If you step back from this, step back from the convoluted reasoning here. The governor, in exchange for money, used his official capacities to promote the agenda of a tobacco company. He is using the influence of the office to reward a person who gave him money quid pro quo. That's what bribery is, and that's what the law is trying to capture with all that broad language. It should be that simple. And it takes a special kind of lawyer brain to sort of talk yourself out of that basic reasoning by convincing yourself that hosting events and setting up meetings don't count as actions on the matter or whatever. What I think is actually happening here is Roberts is doing some policy-making. He's ignoring the literal definition of the words in the statute and replacing them with what he thinks they should mean.

0:19:21.0 Rhiannon: Exactly.

0:19:22.5 Peter: But he can't admit that he's doing that, so he has to redefine all of these words until he's like, "Yeah, setting up meetings doesn't count as an action." And you're I guess supposed to buy that after reading three or four pages of him analyzing text, at which point your brain is just a fine mash...

0:19:43.0 Michael: Yeah. As if someone jammed a screwdriver through your eye socket. [chuckle]

0:19:46.4 Peter: That's the functional...

0:19:49.9 Peter: I think that's what he's doing here is just sort of winding his way through this nonsense logic, and by the end of it, he's just like, "And that is why the word action does not mean what you, the dumb normal reader thinks it means."

0:20:06.9 Michael: It is hallucinatory.

0:20:08.8 Peter: It is. Hallucinatory is how to... I was trying to articulate how I felt about it to you guys, and it's like reading something in a dream.

0:20:18.1 Michael: Yeah.

0:20:18.2 Rhiannon: [laughter] Yeah.

0:20:19.8 Peter: You don't feel like you're ever quite in pointing it, your eyes are squinting, but you can't focus.

0:20:23.0 Rhiannon: Right, it's just ma, ma, ma, ma in the background.

0:20:26.6 Peter: Yeah. It's like the... I think I've described it as the cadence of logic before. And that's what he's just doing this little cadence like, "Ta, ta, ta this word means this, and this word it means this, and therefore this." But it never quite comes together in your brain because it just doesn't make sense. He is the worst writer on the court, it's not close.

0:20:45.8 Rhiannon: Yeah.

0:20:46.5 Peter: Whenever I see his name at the top of an opinion, I'm just like fuck, 'cause this is gonna suck.

0:20:51.2 Rhiannon: I'm shocked there aren't concurrences.

0:20:53.3 Michael: Yeah.

0:20:53.8 Rhiannon: It's unanimous. Everybody agrees with the holding, apparently even the liberals. By the way, the liberals on the court at this time are Steven Breyer, Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg, all of them apparently agree that there's no quid pro quo here. This is not bribery, this is not corruption. Cool, but I do wonder they all signed on to this majority opinion too, right? Not even a concurrence, to just sort of explain in a little bit more logic-y way. None of that just nine-0, everybody with this opinion.

0:21:32.0 Peter: Yeah.

0:21:32.0 Michael: I think this is one where the chief took the hit for the team.

0:21:36.0 Peter: Right.

0:21:36.1 Michael: 'Cause let's be real. There isn't a good way to write this opinion. And you see this in the constitutional argument as well. So in addition to this tortured textual argument, there is a constitutional argument. You will be shocked to know that in this constitutional argument, saying that the government's interpretation of the laws here would raise constitutional concerns. They don't actually cite any portions of the constitution or constitutional provisions that would be concerning at all. They say the concern is substantial, but they don't say how or why. They say that Section 201 prohibits quid pro quo corruption, and in the government's view, nearly anything a public official accepts from a campaign contribution to lunch counts as a quid, and nearly anything a public official does from arranging a meeting to inviting a guest to an event counts as a quo. As this into that. But what are we talking about here? They're describing as the government's, he read an email and then took a shit or something. He accepted $175000 and then put them in contact with various government officials in charge of the policy that they want enacted.

0:22:53.5 Rhiannon: Exactly.

0:22:53.9 Michael: Pressured public officials to enact them for policy, held events at the governor's mansion. What are you talking about?

0:23:02.0 Rhiannon: Right.

0:23:06.1 Michael: It's so insane.

0:23:06.3 Rhiannon: Yeah.

0:23:06.3 Michael: It's absolutely nuts.

0:23:08.5 Rhiannon: I love the idea of the clerks here, the Supreme Court clerks being like, "Okay, so no citations here, we're just...

0:23:14.7 Peter: Right.

0:23:15.4 Speaker 1: What amendment Mr. Chief Justice, are we concerned about?"

[laughter]

0:23:19.7 Peter: Well, okay. So first of all, in this section, he tries to imply that if you read the statute about bribery too broadly, you'll interfere with representative democracy.

0:23:32.3 Michael: Right.

0:23:32.3 Rhiannon: Yeah, the idea that constituents should be able to approach their representatives, talk about their concerns and be heard, right?

0:23:41.3 Michael: Yeah.

0:23:41.4 Peter: Right. And he poses the hypothetical of a home owner who invites a public official to "their annual outing to the ball game." And then later asks the official about a situation where his neighborhood lost power for five days. Now, this is Roberts trying his best to think about how this law might impact a normal person, and he's like, "Okay, what do normal people do? Oh, they invite their favorite politicians to an annual outing at a sporting event. Of course."

0:24:14.6 Rhiannon: We go to the Rangers game once a year, and we invite Governor Abbott. That's what we do, okay.

0:24:21.0 Michael: I am gonna get on the email and email Governor Lujan Grisham after this episode and see if she'll come with me to a isotopes game or something.

0:24:29.9 Peter: I can't believe I'm being accused of engaging in corruption. I'm simply a regular Joe hosting the Governor of New York at the Westminster Dog Show.

[laughter]

0:24:39.7 Peter: My poodle is the reigning champion in the hip dysplasia category.

0:24:44.0 Rhiannon: And I need to talk to the governor about something that happened on my block.

0:24:47.3 Peter: What are you supposed to do if you're a regular constituent who is simply inviting politicians to take your private plane out to your mysterious Caribbean island for a long weekend and in exchange, you ask for a couple of FBI investigations to be de-prioritized. I guess that's illegal now.

0:25:05.8 Rhiannon: I guess we don't live in a democracy. I can't talk to my representative.

0:25:09.5 Peter: I thought we lived in a democracy.

[laughter]

0:25:14.5 Michael: It's fucking nuts. This opinion is...

0:25:17.5 Rhiannon: It's so wild.

0:25:18.7 Michael: Insane. It's substantively insane. I can't get over it. I was going nuts reading it, I had to go outside. I just put in a basketball hoop and I started using it very quickly after I started reading this opinion. I was like, "I gotta go burn off some of this energy."

0:25:40.1 Rhiannon: Yeah, you know what really pissed me off about reading it is this full concern about representative democracy, right?

0:25:46.6 Michael: Oh, yeah.

0:25:47.1 Rhiannon: Talking about constituents must have these open channels of communication with their representatives, that kind of thing. No mention whatsoever of the fact that Governor McDonald's constituents did speak, they spoke very clearly when they convicted him of bribery and sentenced him to two years in prison.

0:26:06.9 Michael: Yeah.

0:26:07.9 Rhiannon: Those were Virginia constituents, right?

0:26:09.1 Michael: Yes.

0:26:09.8 Rhiannon: It's just ridiculous.

0:26:11.2 Peter: They make it seem like this is a slippery slope, like, "Oh, if we make this illegal, if it's illegal to get Rolexes in exchange for public research then it might also be illegal to make a campaign donation of $8 and then go ask the politician to help with poverty in your neighborhood.

0:26:33.8 Rhiannon: Yeah.

0:26:34.4 Peter: And it's like, "First of all, no."

0:26:36.3 Michael: No.

0:26:37.3 Peter: The law is actually a lot simpler than they're making it seem. If the official does a favor because of being taken to a baseball game, then yes, that's a bribe, right? Roberts is trying to act like this might implicate all sorts of normal dynamics between politicians and constituents, but it would still need to be proven that the elected official did something in exchange for payment.

0:27:05.1 Rhiannon: Right.

0:27:05.9 Michael: Right.

0:27:07.4 Peter: If a constituent donates money to a politician and then later by coincidence asks for a favor, and the politician does it, that's not bribery. Right? It's only bribery if the politician agrees to do the favor in exchange for the money.

0:27:21.1 Rhiannon: Right.

0:27:21.5 Peter: And like in this case, there were like emails, there's testimony from Williams himself who was doing the bribing. Like everything came together to pin these motherfuckers down. You're not just gonna get corruption charges brought against random constituents who donated $27.

0:27:38.3 Michael: Right.

0:27:38.5 Rhiannon: Right.

0:27:38.9 Peter: It's just bullshit.

0:27:40.1 Rhiannon: Yeah.

0:27:40.9 Peter: It's just like a fake concern.

0:27:44.0 Rhiannon: Yeah. Totally. And I think like... I don't know, this is so like incomprehensible. One of the things like I'm left with at the end of reading the opinion is truly that how could this be unanimous? You know, on this podcast especially, we don't fucking expect anything good from the Supreme Court. We don't expect anything good from the liberals on the Supreme Court even, right?

0:28:05.2 Michael: It's below them. It is.

0:28:06.7 Rhiannon: But this decision is 8-0. Because Scalia died. So it's eight justices who are deciding this case. Again, there are four liberals. So if the four liberals had dissented here, that actually would've been a tie 4-4, which affirms the lower court that would've affirmed the conviction. But instead, all four liberals are with the conservatives here. It's unanimous. The only explanation that I like really have for this kind of result is that this is completely normal behavior, this bribery stuff, the quid pro quo. This is completely normal behavior for the wealthy and powerful in this country. They can't envision that these kinds of acts, this kind of behavior is actually illegal because it is so normal and such a sort of regular activity in the circles in which they are participating. Right?

0:29:06.0 Michael: Peter, you mentioned during prep, like if you enforce these statutes aggressively, if you enforce the law against corruption and bribery that are in the federal code, if you do that aggressively, it really strips away like one of the main benefits of political power in this country. So like there's this idea of like entitlement with these people that like if you have reached the sort of upper echelons of power, if you are in a position of political power, if you are a wealthy person in this country, that is a benefit that then you have earned, right?

0:29:38.0 Peter: Right.

0:29:38.5 Rhiannon: To be able to deal with others in this way, to have extremely close relationships, including sort of financial relationships with politicians about the issues that you would profit from. Right? This must be just completely normal to them. And that's the only way, like I can explain that this decision is 8-0.

0:29:57.2 Peter: I mean, the Roberts example speaks to it so much where he is just like... Yes. Yeah. What if you're taking your local senator to a baseball game and it's like you've forgotten what real human beings, existence is, are like, right. Right. No one knows their local politician, like [chuckle] I don't know any fucking federal officials.

0:30:16.2 Michael: Yeah. Half the country doesn't even vote because they think they're all crooks.

0:30:18.9 Peter: Right.

0:30:19.4 Rhiannon: Yeah.

[laughter]

0:30:21.0 Michael: Right. And then of the ones that do vote and donate, like none of them have access, right? The only people that have access are like the fabulously wealthy, right?

0:30:32.3 Rhiannon: Yeah, yeah.

0:30:32.6 Peter: Right. It's just so obscene. I have a theory about the libs here, and it's based on reading like a lot of the opinion pieces at the time within legal circles, a lot of them were coming from big law liberals, like big time law firm partners, publishing pieces about how this stuff is important for democracy and how to endorse a broad reading of the statute would be an impediment to people being able to interact with their representatives.

0:31:09.4 Rhiannon: Right.

0:31:09.8 Peter: Now, what were those big law partners doing? They were protecting their clients who were all the insanely rich people who actually do have access to politicians.

0:31:19.4 Rhiannon: Exactly.

0:31:21.9 Peter: But if you're sitting in Kagan's seat, for example, maybe that comes across to you like consensus, right? All of the fancy litigators who usually file an amicus brief, all of a sudden they're on the side of the governor here. Right? It looks to the justices like bipartisan consensus, but what it actually is, is elite consensus. And they can't tell the difference anymore.

0:31:45.4 Michael: Yeah.

0:31:47.2 Rhiannon: Right. And you know, all of this is like particularly prescient right now because of... You know we've been talking over the past few months about corruption at the Supreme Court, but in particular about the story of this Reverend Schenck guy, who has come out and talked about his own personal lobbying basically to Supreme Court Justices, but talking about the regularity with which, you know, these kinds of powerful people, including lobbyists, including people who have very strong interests in front of the Supreme Court, in front of politicians are wining and dining with them, having dinners with them, regularly visiting them at these annual Supreme Court events. Having dinner at the Justice's houses. Right?

0:32:32.1 Peter: Yeah. You probably had like millionaires who wine and dine the Supreme Court Justices just texting them like, please don't make our friendship illegal.

[laughter]

0:32:39.9 Rhiannon: Yeah.

0:32:40.2 Peter: With a sad face. [chuckle]

0:32:42.1 Rhiannon: Right. Exactly.

0:32:43.4 Michael: Yeah. There's another level of sort of bullshit bullshit to this opinion where they say it raises federalism concerns because when the states get to structure their relationship between their public officials and their residents, of course, like the problem is that like the governor controls the state executive branch, which is the people who investigate and enforce the law.

0:33:11.1 Rhiannon: Yes.

0:33:13.1 Peter: Right.

[laughter]

0:33:14.0 Michael: And sitting governors, I think have an interest in seeing that past instances of corruption go unpunished.

0:33:23.5 Rhiannon: Yes.

0:33:24.7 Peter: Right.

0:33:25.9 Michael: To be precise that they themselves don't wanna be the subject of corruption investigations.

0:33:29.2 Rhiannon: Right.

0:33:31.4 Michael: So this is a place where the federal government is uniquely well suited to play a law enforcement role.

0:33:40.1 Rhiannon: Yes.

0:33:40.5 Michael: In the structure of our government and the court is stepping in and saying, "Actually, calm down, do you really wanna be policing someone, taking nearly $200,000 in bribes?"

[laughter]

0:33:53.1 Michael: Yes, yes...

0:33:54.7 Rhiannon: That's what I want them to do.

0:33:56.0 Michael: Yeah, absolutely.

0:33:57.3 Peter: There's something so hollow about that like, Well, is it really the federal government's business that some business man is bribing the Governor of Virginia, it's like, Well, yeah, a governor of a whole fucking state. Yes, it's the federal government's business.

0:34:11.8 Michael: There is something else I was thinking while you guys were just talking, is that sort of the background to this, and they mentioned it is campaign finance in the relationship between the wealthy and politicians as a result of the court opening up campaign finance laws, and it's worth noting. If you had a double take when you heard that these people met, when one of them lent his private plane to the other's campaign, like how could that possibly be legal? Virginia has no campaign finance limits.

0:34:46.2 Rhiannon: Cute.

0:34:46.6 Michael: None. You can give as much money on the state level to state candidates as you want, so it is particularly right for quid pro quo corruption in the campaign finance setting, but this is a culture of such permission that they're not even bothering cloaking the bribes in the form of campaign finance, it's like, Yeah, I'll buy you a Rolex, yeah. I'll loan you a personal loan to pay for beach houses, you have that or like income property.

0:35:23.8 Rhiannon: Right.

0:35:24.3 Peter: The fact that there is no caps on campaign donations makes this even more egregious, right? Because it's clearly not to aid the campaign or whatever in any specific way...

0:35:35.6 Michael: Right, they're not even pretending it's just like this is a personal loan to you in exchange for you using the power of the governor to help my business. Which is precisely what happened, like there's no dispute that that is precisely what happened. The governor traded his influence to help a business in exchange for $175,000, but that is not corruption and it's not a violation of the law because he didn't commit an official act, so this case ends. I think this is really good, 'cause this case ends, this line where it says there's no doubt that this case is distasteful, it may be worse than that, it may be worse than that [laughter] It says but our concern is not what that Todd retails of Ferraris, Rolexes and ball gowns, blah, blah blah. It is instead, with the broader legal implications of the government's boundless interpretations of the Federal bribery statute, a more limited interpretation of the term official act leaves ample room for prosecuting corruption and there were some articles that came out after this that are like McDonnell of United States is this the end of public corruption campaigns, and people saying maybe not and maybe you could do this and the courts literally saying it's not.

0:36:50.9 Michael: And the Supreme Court is like, "That's right, we're right" So we gotta do something about that. We need to actually put an end to public corruption campaigns. And so they took out some more cases this term to make it even fucking harder to prosecute public corruption.

0:37:08.3 Rhiannon: That's right.

0:37:09.0 Michael: They're two. But one of them, I think, in particular, for Percoco v. United States from this term is good because it also has a campaign finance in the background, and this is one where a very senior aide to then Governor of New York Andrew Cuomo resigned from office in order to run Cuomo's Campaign. Still maintain key card access, still attended government meetings where everybody else was a government official, still basically performed the duties of a senior aide to Cuomo while also running his campaign, and then took money in exchange for influence in the Cuomo administration. And the question is whether this still counts as a public official in the bribery statutes.

0:38:05.0 Rhiannon: Oh God.

0:38:05.6 Michael: And the court seems very poised to say, "No, it does not" And they're really concerned that this is way too loose of an interpretation of public officials, including questioning from Elena Kagan said that the argument went too far. It is one thing to prosecute officials who take "A little hiatus" And engage in graft, knowing they will return to the government, but in focusing on whether someone was a functional government official that would sweep in many other kinds of people seeking to influence official actions. This is from The New York Times, write up of this story. We can't allow that.

0:38:44.2 Rhiannon: Right.

[laughter]

0:38:44.9 Peter: We can't allow that, they are constantly dreaming of a world where the government is prosecuting tons of these cases against random innocent people, like some grandma at a campaign rally is just getting arrested by the FBI, like this shit is not happening, what are they concerned about? There are a handful of these prosecutions every year, you can look at them and know that they're not out of control in any way, it's just so fucking stupid.

0:39:13.8 Michael: If anything, it's like there is an obvious, obvious problem of public corruption at state and local levels of the government, because their law enforcement is often not independent, not funded or set up to do public corruption investigations, the campaign finance watchdogs are less equipped. It's much cheaper to bankroll these elections, right?

0:39:42.2 Rhiannon: Yes.

0:39:42.7 Michael: They're spending hundreds of millions of dollars on Senate elections now, but you can buy 10 seats in the Florida State House for 100 Grand. [laughter] And then local papers are dead, there's just like... Infrastructure for this is vanishing.

0:40:00.8 Rhiannon: And accountability infrastructure right.

0:40:01.9 Michael: The accountability infrastructure is vanishing and this is the last line of defense here and the Supreme Court is like, "No, no, no, what if this would allow for the prosecution of an effective lobbyist?" That was a real question Elena Kagan asked [laughter]

0:40:21.1 Peter: What if it would allow for the prosecution of an effective lobbyist?

0:40:25.2 Rhiannon: Oh no.

0:40:25.9 Michael: Just a really, really good lobbyist. A really, really good lobbyist.

0:40:30.1 Rhiannon: Not my favorite effective lobbyist. Oh no.

[laughter]

0:40:35.1 Michael: Something that I think is very funny is that this case has been sort of bouncing around on our list to do for a while.

0:40:41.1 Rhiannon: Yeah.

0:40:41.2 Michael: And this case was... We could have done this like week five of this podcast. It's such a ridiculous, ridiculous case.

0:40:49.0 Rhiannon: For sure. Yeah.

0:40:49.4 Michael: And we've been holding off for the right moment and we decided to do this. When we were planning in late November. Early December, we're like, all right, it's time. This will be a good episode to come back from the break.

0:41:02.0 Rhiannon: Yeah.

0:41:02.0 Michael: With like, well, kick in the new year with like a banger with fucking McDonald. Bribery is legal.

0:41:09.1 Rhiannon: Right. [chuckle]

0:41:09.5 Michael: And then, multiple stories come out about the Supreme Court Justices themselves being the targets of money influence campaigns.

0:41:21.5 Rhiannon: Yes.

0:41:21.8 Michael: Multiple, multiple. Insane. One being this guy testifying before Congress talking about how it was an open secret. Clarence Thomas knew what he was doing, that he was trying to push anti-abortion politics at the court and he was buying access to the justices. And Thomas was like, "Yeah, you're doing good. Keep it up, man."

0:41:42.4 Rhiannon: Yeah. Yeah, That's Reverend Schenck, right? That guy.

0:41:44.9 Michael: Yeah, that's Schenck.

0:41:46.2 Rhiannon: Yeah.

0:41:46.6 Michael: And then the other thing is like the Supreme Court has some sort of foundation or something and I guess people buy influence or at least try to, by donating to this and getting even scant FaceTime with the justices including like hundreds of thousands of dollars from Chevron and other people, who have interests before the court.

0:42:07.8 Rhiannon: Yeah. Who have cases in front of them?

0:42:09.9 Peter: Every year I donate $20 and then I say, "How about those abortion rights I've been asking for?"

[laughter]

0:42:21.5 Michael: So yeah, looking back on this case, the timing was perfect because it's like also the subtext here, even before we knew these stories was like the subtext was like, this would make so much of what we do illegal, right?

[laughter]

0:42:36.9 Michael: This can be illegal. We're the subject of money influence campaign.

0:42:40.6 Rhiannon: Yep.

0:42:41.1 Peter: Right?

0:42:41.6 Michael: And then it's like just explicit.

0:42:43.2 Peter: Are you telling me that number one Supreme Court fan, the chairman of ExxonMobil, can't take me to a baseball game?

[laughter]

0:42:51.0 Rhiannon: Well, it's not just that, right? The New York Times reported that this charity that's part of the Supreme Court took $190,000 in secret donations from Chevron while the company had cases pending in front of the justices.

0:43:10.6 Michael: It's nothing until we're there.

0:43:12.7 Rhiannon: Right.

0:43:13.7 Peter: No.

0:43:14.3 Michael: Secret donations to the Supreme Court.

0:43:14.8 Rhiannon: Yeah.

0:43:15.2 Peter: No, at the end of the day, there needs to be a mechanism for oil companies to secretly give money to a Supreme Court Foundation.

0:43:23.9 Rhiannon: Yeah. Yeah.

0:43:24.6 Peter: That's how democracy works.

0:43:25.8 Michael: That's right.

0:43:26.3 Rhiannon: Yes. [laughter]

0:43:26.6 Peter: Representative democracy, which is when oil companies pay money to unelected branches of government.

0:43:33.8 Michael: Yeah.

0:43:34.1 Rhiannon: That's right.

0:43:34.8 Michael: That's the sort of shit that... When I hear about that, I salute the flag.

[laughter]

0:43:42.1 Michael: And just like another thing that's in the background of this and you guys both alluded to this about this is just how rich people act is like, I'm sure all the justices have friends, who donate 50 grand to Yale to make sure their kid gets accepted and fucking Clarence Thomas has a wife, who blatantly is like a paid political operative, right? With that, she then tries to use to influence Thomas. This is not a big revelation.

0:44:17.0 Peter: Right. And uses Thomas to influence people around her in political circles, right?

0:44:22.1 Rhiannon: That's right.

0:44:22.3 Michael: Yeah, exactly. So this sort of casual use of money to get small, official favors, I think is just routine in their lives. And so like how could that possibly be illegal?

0:44:38.8 Peter: There's something like missing in their brains about all of this. If a public official takes money and then uses the power of the government to do something in exchange, I don't know why that can't be basically an across-the-board violation of the law.

0:44:58.5 Michael: Right.

0:44:58.7 Rhiannon: Right.

0:45:00.4 Michael: Yeah.

0:45:00.4 Peter: It's so weird to look at that and think like, let's not get carried away. It's like, why not?

0:45:05.8 Michael: Right.

[laughter]

0:45:05.9 Peter: How often do they think people are paying politicians money?

0:45:09.1 Michael: Right.

0:45:10.9 Peter: And then asking for favors in exchange. There's something so surreal about it. You could also, by the way, we were talking about this in a prep, if they were really concerned about this impacting the average person, then make it so that campaign contributions don't count.

0:45:22.5 Rhiannon: Right.

0:45:22.9 Michael: Like cannot be part of a bribery scheme. I mean, I don't even think they should do that.

0:45:27.5 Michael: It's a fairly easy limiting principle.

0:45:29.4 Peter: Right, exactly. If that was your concern, you could do that. But instead, they've decided to tinker with the language of what is an official act such that doing half a dozen things to promote the public funding of a study just does not qualify for some reason.

0:45:48.7 Michael: Right.

0:45:49.5 Peter: I just don't like, I can't take their arguments in good faith. It's just nonsense. It's just powerful people sneering at us. That's what this opinion feels like.

0:46:00.7 Michael: Yeah. Yeah. And so this recent case, too, it's like, this is state-level stuff again, but this structure, where an aid resigns and runs a campaign is very common...

0:46:12.1 Rhiannon: For sure.

0:46:13.0 Michael: In federal elections. And what's especially common is high-level aids resign and run Super PACs.

0:46:21.2 Rhiannon: That's right.

0:46:21.7 Michael: Which are supposed to be operated independently. And the idea being that as long as there's no coordination between a Super PAC and the actual candidate, then there won't be any indebtedness. But meanwhile, they're being run by people, who have been in the candidate's closest circle for years. If the candidate wins will certainly be in their administration, it's just rife with opportunities for just blatant corruption.

0:46:51.7 Peter: When you look back at like Robert's court cases they touch on public corruption, you can see that at least the conservatives on the court believe that there is a fundamental right to purchase political power.

0:47:05.4 Rhiannon: Yes, right.

0:47:05.5 Peter: Right? You can see it at a high level in cases like Citizens United v. CREW. They talk about the importance of letting extremely wealthy people spend money adjacent to political campaigns. You see it in CREW v. FEC where they expanded the ability of candidates to pay back personal loans with donor funds. And you see it very clearly here, where they are effectively legalizing numerous types of political bribery in all of these cases. They are appealing to broad principles about civic participation and pretending that all of this stuff is carefully woven into the fabric of our democracy, when in fact it's actually just a cancerous outgrowth of our democracy.

0:47:49.4 Michael: Yeah.

0:47:49.4 Peter: And the rhetoric they use where they just sort of wrap this stuff in the American flag and talk about the magic of the Constitution. Not any provision of the constitution, but just generally.

0:48:01.9 Rhiannon: Yeah.

0:48:02.4 Michael: Yeah.

0:48:02.6 Peter: It belies how hollow their argument is. This case is incoherent.

0:48:06.7 Michael: Right.

0:48:08.2 Peter: I mean, incoherent.

0:48:09.5 Rhiannon: Utterly.

0:48:09.6 Peter: What it really is, is a statement about where power is and where it should be. Right? They believe that people like that, that have access to a governor that can pay the governor in exchange for little government favors here and there, that people like that deserve that access, that they deserve that power. And this is the core at putting their stamp of approval on that.

0:48:32.0 Michael: That's right.

[music]

0:48:34.0 Peter: All right. Next week, Giles v. Harris, a case from the turn of the last century about voting. So you know it's gonna be great. Special announcement, February 24th, we're doing a live show in Austin, Texas.

0:48:55.9 Rhiannon: Five Four Live.

0:48:57.4 Peter: Tickets are on sale. Just go to fivefourpod.com and follow the links. Hopefully, we'll see you there.

0:49:05.4 Rhiannon: Yeah.

0:49:06.0 Peter: In a couple of weeks we are gonna be doing a Patreon-only episode where we answer listener questions, which we haven't done in quite a while. So submit your questions if you have them and want them answered, ideally smart, good questions. But if you have some stupid questions, we'll take a small percentage of those as well.

[laughter]

0:49:25.9 Peter: Follow us on Twitter @FiveFourPod.

0:49:28.9 Michael: Follow us on Instagram.

0:49:30.3 Rhiannon: @FiveFourPod all spelled out.

0:49:32.5 Peter: Subscribe to our patreon.com/fivefourpod all spelled out, access to premium and add free episodes, access to all sorts of other contents, our Slack, special events, all kinds of shit. We'll see you next week.

0:49:48.6 Michael: Bye-bye. Five to four is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin, and our assistant producer is Arlene Arevalo. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks @chipsny, and our theme song is by Spatial Relations.

0:50:22.4 Peter: That felt good.

0:50:23.1 Rhiannon: Yeah, I think that's good.

0:50:24.4 Michael: Eh, it felt like a fucking banger to me.