We might as well get used to it: From now until Election Day, Republican presidential nominee Donald Trump is going to pound away in speeches and tweets about the Clinton Foundation and its criminal dealings with Democratic presidential nominee Hillary Clinton.
And why shouldn’t he? His base of supporters, and even people beyond his base, are angry about what Trump is slamming as “pay for play.” They see a case of quid-pro-quo corruption at work here – the pay or “quid” is contributions to the foundation in exchange for the “quo” of access to the then-secretary of state.
The foundation has just released its plan to remove the Clintons – and the Clinton name – from its signature Clinton Health Access Initiative. The Trump campaign said the move was just a “gimmick” in the face of Clinton’s “mounting controversies” with the foundation. The nation, meanwhile, is in one of its populist surges of widespread public outrage over political corruption, and it isn’t going to subside any time soon.
Yet the Supreme Court and the Justice Department have recently made it far less likely that Clinton’s actions could ever be subject to criminal prosecution. They have created a huge gap between what the public sees as corruption and what the law will recognize as a crime. To see how this gap opened up, we have to look at the case of former Virginia Governor Robert McDonnell, now out of the limelight but considered a “rising Republican star” when he won the Virginia statehouse in 2010.
The public didn’t know, however, that McDonnell was in serious financial trouble. His real estate investments had tanked in the 2008 financial crisis, yet his political and lifestyle expenses had steadily increased.
Enter a businessman named Jonnie Williams, who wanted the state’s help in marketing a dietary supplement called Anatabloc. Williams gave the McDonnells lots of things — a Rolex for the governor, designer clothes for his wife, catering for their daughter’s wedding, a loan to their real estate company, the use of a Ferrari, and access to the golf course at Williams’ country club.
Then Williams turned state’s evidence against the McDonnells, who were convicted of public corruption in 2014. McDonnell appealed all the way to the Supreme Court, which ruled on his case this spring. The court noted that the relationship between Williams and the McDonnells was “tawdry”– but what they had actually done for Williams was far from clear. They hosted a lunch for him; Williams said it was a product launch, while McDonnell said it was just lunch. McDonnell introduced Williams to the state’s secretary of health and human resources – who, unimpressed, did nothing for Williams or Anatabloc.
The court held that bribery requires a “quid pro quo” – something given to a public official and some “official act” performed in return for the gift – and that McDonnell had not performed any “official act” for Williams. The justices unanimously overturned McDonnell’s conviction.
Government officials, the ruling explained, are constantly in touch with private citizens – through phone calls, emails, meetings and more. Such interactions are the building blocks of representative government, the means by which citizens control their elected officials. Calling all these exchanges “official acts,” the court said, would “cast a pall of potential prosecution” over just about any contact politicians might have with constituents. So, why not leave it to prosecutors to determine which contacts are criminally corrupt? Because the court did not want to “rely on ‘the Government’s discretion’ to protect against overzealous prosecutions.” For the justices, that kind of reliance would raise a “serious concern” about the Constitution’s guarantee of due process.
It must be said that this was a lot of high-flown constitutional rhetoric in defense of a family that had wheedled favors from an unsavory operator. Why the solicitude?
It makes sense only if we remember the political landscape that informed the justices’ sense of what kind of government behavior is fundamentally dangerous. Even the youngest of the justices is old enough to have lived through the aftermath of Watergate, the scandal that led to the resignation of President Richard M. Nixon in 1974. That aftermath included the Office of the Independent Counsel, which persisted for 20 years before it had gored absolutely everyone’s ox and was allowed to expire. It included RICO, the Racketeering Influenced and Corrupt Organizations Act, which gave federal prosecutors immense new power. There was also the proliferation of aggressive internal investigation units in the federal government.
Suzanne Garment, a lawyer, is the author of Scandal: The Culture of Mistrust in American Politics