McDonnell v. United States (15-474)

argument 15-474

McDonnell v. United States

Supreme Court of the United States 1h 3m 5 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the Supreme Court’s definition of an “official act” in the McDonnell case?

John G. Roberts 0:00

We'll hear argument this morning in case fifteen four seventy four. McDonald versus United States.

0:06

Mr.

Paul Clement 0:07

Francisco? Mr. Chief Justice, and may it please the court. The government argues that in quid pro quo bribery, official action encompasses anything within the range of official duties. In order to reach that conclusion, it asks that you disregard a nine zero decision of this court. The government is wrong. In order to engage in official action, an official must either make a government decision or or urge someone else to do so. The line is between access to decision makers on the one hand And trying to influence those decisions on the other. And that's the Sun Diamond case, the 9-0 case that you refer to? Yes, Your Honor. The Sun Diamond case, the 9-0 case. And I think what Sun Diamond confirms is that when official simply refers someone to another official, an independent decision maker for an objective decision, he hasn't crossed that line into prohibitive.

John G. Roberts 1:01

official action. I I take it all parties concede that the act of the university official to undertake or not to undertake a research study would be an official action? Yes,

Paul Clement 1:12

Your Honor. And the question is, did the governor cross the line into influencing officials to undertake that action and was the jury properly instructed? Can you tell me the

John G. Roberts 1:21

posture of the case with reference to Uh under Virginia law, the government the governor's authority or lack of authority to tell the university you will engage in this research or you will not engage in research.

Paul Clement 1:40

Your Honor, I think that the parties agree that the governor at least had a bully pulpit authority, but he had very little authority to actually direct any university researcher to do anything. And here I think one of the critical questions there are two critical questions. One, was the jury told that he he it even had to find that he tried to do that, and here it wasn't. And two, did he in fact do that? And we would assert that he clearly didn't.

Stephen G. Breyer 2:03

Would it have made a difference? if the medical faculties had agreed to the testing?

Paul Clement 2:11

Your Honor, um if they had agreed to the testing, I still don't think it would have made a difference in terms of whether Governor McDonald uh tried to influence their decision on that because he didn't, and it still wouldn't have made a di uh uh a difference on the jury instructions because the jury still wasn't instructed that it had to find that Governor McDonald tried to influence a particular governmental decision because it wasn't so instructive.

Anthony M. Kennedy 2:34

Francisco, could I ask the line you're drawing between exercising influence and providing access? Just to sort of test that with a hypothetical, supp suppose that somebody knew that there was a a contractor who was going to award a very large contract. to one of two or three firms that the um that he was uh meeting with. And um and a company paid to make sure that they were on the meet list to be one of those two or three firms. In other words, bribed an official in order to become one of those two or three firms. From which that was the pool from which this um billion dollar contract would emerge. Would that be sufficient?

Paul Clement 3:15

Uh Your Honor, I think that probably would be official action, because there the only way you can even get a decision in your favor is be by by being one of the three people on that list. So being on that list is a prerequisite to getting a decision. Being denied all denied on that list is a denial of the decision, and that's an official governmental action. Here the jury wasn't instructed on any of this. They didn't have to find that Governor McDonald tried to influence anything. Indeed, it would have been required to convict under these instructions if Governor McDonald had called up a staff member and said, I'd like that you you to meet with this fellow Johnny Williams. I don't really trust him, his product's a little hinky, but you're the expert, so meet with the guy and exercise your complete and unfettered independent judgment.

Samuel A. Alito 3:58

Okay. Let me just change the the hypothetical a little bit.