The Fourth Circuit Court of Appeals had its chance to clarify the distinction between criminal and lawful politics, and it seems to have missed it.  Among other issues, it was called on to consider the question of what constitutes an “official act.” In extensive briefing, the Court was warned that whatever one thinks of former Governor McDonnell’s behavior, the jury was not properly instructed about where, in the world of politics, mutual backscratching ends, and bribery or honest services fraud begins.  The cases cited included Citizens United (along with McCutcheon v. Federal Election Commission) and their declaration that ingratiation and access are elements of ordinary political interaction, not corruption.

But the Court in McDonnell rejected the relevance of these cases.  It insisted that an official act included “customary” or “settled” practices of the widest variety that cannot be known except upon the consideration of the facts in particular cases. The Court conceded that it might not be enough for such an act to simply relate to official duties. But it did not explain the nature of the required connection. So long as the officeholder might act in a fashion that could connect in any way and at any point to official duties–to any “question, matter, cause, suit, proceeding or controversy” to come before the government–it would be sufficient to qualify as an official act on which a criminal prosecution would be based.  The connection would not have to be direct: the alleged official action could be one of a series of steps over time toward the accomplishment of the desired end.

The Court was unsparing in this view.  At most it was ready to allow that official acts might not include “functions of a strictly ceremonial or educational nature.” These would “rarely” figure in a prosecution. United States of America v. Robert F. McDonnell, No. 15-4019, 2015 WL 4153640, at * 22 (4^th Cir. July 10, 2015).  So even an appearance that was “strictly ceremonial” could constitute an official act in a bribery or honest services prosecution.  The Court also would not rule out reliance on the subjective—and perhaps wholly unreasonable—beliefs by the briber or gift giver that she would receive or benefit from official support.   In the face of the objection that a subjective belief could not “convert a non-official act into an official one,” the Court would say only that the proposition was “debatable.” Id. at *25.

As for Citizens United, the Court claims that the reference to ingratiation and access was misunderstood, taken out of context.  Why?

First the Court notes that Citizens United was a campaign finance case, involving neither the honest services statute nor the Hobbs act.  As true as this is, it contributes little to the legal argument.  Second, the Court suggests that the ingratiation and access language appears in Citizens United only after “a much broader definition of corruption”, which includes a reference to “dollars for political favors”.  This is, at best, confusing: the Supreme Court’s point was that the “much broader definition” should not include ingratiation and access.

On the basis of this decision, courts will have decide in roving, indeterminate fashion, which of the “settled practices” of politicians fall within their official duties for purposes of criminal prosecution.  For the prosecutor, this is opportunity, and for the politicians, mostly risk; and for the courts, when the cases come before them, it becomes the challenge of making ad hoc judgments about when politicians are behaving appropriately.

It is a challenge for the courts because, as Chief Justice Roberts pronounced in Williams-Yulee, judges are not politicians.