B (4:28)

You got it about right, yes. Now, if you can tell me the outcome, that would be great.

A (4:32)

What happened at the court? I think I can tell you because we all walked out of there saying, oh, also, McDonnell won. So I'm not gonna tell you that, but I'm gonna speculate. But maybe we can go back and talk a little bit about the Hobbs act and the honest services statute that were used to prosecute McDonnell in the first place. Right. These are not state laws. What he did was legal under state law, but he was prosecuted under these federal anti corruption laws. If you could just tell us what they're intended to do and why they were used the way they were used.

B (5:07)

Well, it's not entirely clear what they were intended to do. In my view, the Hobbs act was intended to deal with sort of the irreducible minimum of corruption, which is, I give you money and you get me the contract. It's Paying for a specific act. That's what we know were covered by these statutes over time. Because, because they're defined in extraordinarily broad terms. Prosecutors used them to deal with government officials who had a conflict of interest. In fact, no money was exchanged for a particular task. It was just that somehow the honest services were breached. That is to say that your commitment to be an honest and conflict free politician was breached. The Supreme Court pulled back on that in one of the Enron cases, which was the prosecution of Skilling, and said, no, it has to be a quid pro quo. It has to be money in exchange for something. It has to be in exchange for, in my view, a specific act, a specific result, or at least an attempted specific result. Now, I'm interpreting that these very vague statutes in the light of Citizens United on the one hand and the prosecution of Skilling on the other, that was a term in which the Supreme Court, in the context of campaign contributions, to be sure, announced that it was okay. That in fact you could not criminalize, you couldn't even regulate campaign contributions if your purpose was to control access and ingratiation. That you couldn't say that someone couldn't give you campaign contributions in exchange for access and ingratiation. That was a quid pro quo. That was okay. And then later on, in the same terms, the Court says that Skilling dealt with traditional bribery and nothing fancier than that. When you put these two cases together, it at least makes ambiguous the following question, which is whether or not the statutes were ever intended to deal with gifts, not campaign contributions. Gifts in exchange for access and ingratiation.

A (7:30)

So just to be clear, Judge Gertner, it feels as though what you're saying, and you're right, I think to say this follows after scaling and sitting Citizens United, these anti corruption statutes really don't get to any conduct other than, you know, Scrooge McDuck comes in with bags with dollar bill, signs on them and puts them on the senator's desk and says, take this money and in exchange for that, you know, give me the contract. That's all it's limited to.

B (8:04)

Well, that's what I think that's what it's limited to. Now, I think that that's the only fair interpretation of these statutes. So again, let me dial back. Well, I'm sure that one can. And in fact, the government sounds like it did say, oh no, no, it covers a broader range of corruption out of the context of campaign contributions and it covers money for access and ingratiation. The fact of the Matter is, though, that you can't stretch the criminal law to cover conduct that was not clear. And once Citizens United and Skilling came down, the question of the extension of this law to access and ingratiat became ambiguous. It is no longer clear. In fact, it's not just that Citizen United said you can get campaign contributions in exchange for ingratiation and access, literally. Justice Kennedy says that it is part of American politics. He says favoritism and influence are not avoidable in representative politics. It's the nature of the elected representative I'm quoting now to favor certain policies, to favor the voters and contributors who to support those policies. Now, again, that's in the context of campaign contributions. But then it leaves ambiguous what happens when you're outside campaign contributions. You may be able to regulate it. There's no First Amendment protection to giving a gift to a politician. You may be able to regulate it, but if you have not regulated it, if you have not made it criminal, you can't start in the McDonald case. That's all that the case is about. Let me add significantly, Virginia did not prohibit these gifts. These were not undisclosed gifts. Virginia did not prohibit them. So the notion here is that no one could possibly have known that getting this money in exchange for a seat at the table, which is really a seat at the Governor's table, literally was illegal.

A (10:05)

So let's listen to a little bit of audio, because it seems to me that where this becomes complicated probably on both sides of the case is we have to draw some line. How do we draw the line of what official acts look like? Here, let's listen for just one second to NOEL Francisco, he's Governor McDonnell's lawyer at the Supreme Court, telling the Court that the right test is more or less that in order to commit official acts, you either have to do something or make someone else do something in exchange for gifts.

C (10:37)

In order to engage in official action, an official must either make a government decision or urge someone to 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.

A (10:52)

So I just want to suggest to you that some of the Justices, certainly Justice Stephen Breyer, Sonia Sotomayor, even the Chief justice said, doesn't it just make sense that if you are a person in authority and you say to a subordinate do this thing, that they're going to feel pressured to do it? In other words, I think the Chief Justice's formulation was, because it's really different when the President asks you to do a favor and Isn't it simply the case that the nature of getting a phone call from the governor saying set up a meeting or run these clinical trials is that they're going to feel that they are being urged to do it, which is precisely the test Francisco sets forth.

B (11:36)

Well, it's first of all going back again, dialing back to Citizens United. Citizens United said that you can have campaign contributions in exchange for a seat at the table, bearing in mind that that is a distortion of American politics. In other words, bearing in mind that your campaign contribution is likely to lead to your voice being heard more loudly than anyone else. So we said that that was okay in connection with campaign contributions. And I might add that I actually disagree with the outcome in Citizens United, but it is a fact and it is law. So the question is, in this context, non campaign gift setting, is it any more clear what the lines are? And if we can't draw clear lines in the light of Citizens United and in the light of American politics, we can't do it in the context of a criminal statute. In other words, let's sort of go through. I understand that in the argument on Wednesday there are all sorts of interesting hypotheticals. So politicians regularly get calls from constituents of all kind. And so you'll get a call to your office to set up a meeting with some. So you give the person the number of the official, or you then call the official and say will you talk to this person? Or will you call the official? And you say talk to Mrs. Jones because she's an important contributor to my campaign. Or you say talk to Mrs. Jones, I think she has something interesting to say. Or talk to Mrs. Jones and do what she said. Right. You can think of all sorts of comments along that continuum. If the governor said do what she says, then you're over the line. But everything short of that is maybe making official action more likely. But clearly ambiguous in terms of Citizens United, I might add that I think that we can talk about regulating this kind of conduct, but you don't regulate conduct after the fact through the criminal law.

A (13:49)

So I want to use that as a segue to colloquy Justice Breyer had. Making a similar point, he's now talking to the representative of the Solicitor General's office, Michael Dreeben, and he's explaining that he has two problems with using the criminal law to achieve these anti corruption ends. Let's have a listen.

C (14:13)

1. Political figures will not know what they're supposed to do and what they're not supposed to do. And that's a general Vagueness problem. And the second is, I'd call it a separation of powers problem, that the Department of Justice in the executive branch becomes the ultimate arbiter of how public officials are behaving in the United States, state, local, and national. And as you describe it, for better or for worse, it puts at risk behavior that is common, particularly when the quid is a lunch or a baseball ticket throughout this country. Now, suddenly, to give that kind of power to a criminal prosecutor who is virtually uncontrollable is dangerous in the separation of powers, since so.

A (15:06)

So Judge Gertner, listening to that, I think he's making that initial point you're making, which is the criminal law is. Is not the appropriate instrument. But then he goes further, and somehow it feels like he's calling into question the integrity of federal prosecutors. He's saying, they're just going to go after everyone for everything, and no one's going to know what the line is. So best to just vaporize the line altogether. I mean, it feels like it's a pretty cynical read of a federal prosecutors, and, you know, you can construct it as a separation of powers problem. But it felt to a lot of us in the courtroom that he was saying, well, certainly the cure for corrupt politicians is not corrupt prosecutors. Am I being unfair?

B (15:53)

I think you are being unfair, because I think, you know, American government, American Constitution, is all about avoiding the risks of too much power. It's really allocating what the risks of too much power are. That's what checks and balances and the separation of power was all about. And no better an authority than Justice Robert Jackson says that if the law is ambiguous, then it enables a prosecutor to pick the person he wants to prosecute and then determine the charge. And I think that all that Justice Breyer was saying was that if the law is vague and the law by itself doesn't define what's within its purview, then it becomes very easy for a prosecutor to say, I want to get X and figure out a charge that matches. And there is vagueness all throughout the federal criminal code in particular. But it's particularly dangerous when you talk about elected officials, because a prosecutor of one party could go after a governor or the senator of another. It's also interesting to me that. That I've been talking to others about this case, and people say, well, don't you believe that Governor McDonnell just went too far? There was too much money here, and we can't have a criminal law based on too much. Right. What's that line?

A (17:18)

It was a heartening moment, Judge Gertner, when Justice Breyer tried to roll off his tongue how much a nice bottle of Chateau Lafitte would cost at a fancy lunch. And he couldn't, it seemed to me, within a decimal place figure out the that it suggests that whoever is in the pocket of big money, it's not Stephen Breyer.

C (17:39)

The lunch with the Chateau Lafitte wine happens to be the quid. And, and that's worth like $1,000 or 500. Anyway, I don't go to those restaurants anymore. But, but, but you understand that.

B (17:54)

I don't.

A (17:54)

I don't.

C (17:55)

It's the other side of the equation. I'm, I understand, Justice Breyer, but what.

B (17:59)

I think it would be helpful before.

A (18:01)

We continue with Judge Gertner, we are, in fact, at the part of the show where we tell you about one of our fabulous sponsors. And as you know already, I'm a huge fan of the Great Courses. So I'm very excited about their new video learning service, the Great Courses Plus. Why? Because they give you unlimited access to a vast library of lecture series on all sorts of fascinating subjects that you already know you're interested in. We really want you to try the Great Courses Plus. And so they're giving amicus listeners an opportunity to stream their popular course, the Modern Political Tradition Hobbes to Habermas and hundreds of other courses for free. The Modern Political Tradition, Habs to Habermas is a fascinating look into the way political theorists over the last few centuries have approached the question of how states are best governed. And what they do is examine fundamental questions like the ones we examine on this show, ranging from freedom to the nature of rights. With the Great Courses plus, you can watch as many different lectures as you want anytime, anywhere. So start watching today. If you go to thegreatcoursesplus.com amicus that's thegreatcoursesplus.com Amicus so we have to talk about Citizens United because, of course, as you've alluded you and Professor Charles Ogletree and John Jeffreys here at University of Virginia wrote what I think a lot of people thought was a kind of astonishing brief, citing Citizens United for the core principle that you've just laid out, which is Citizens United gave us a right to pay a bunch of money for a seat at the table. Right. Ingratiation and access are something to which we are entitled after Citizens United. And, you know, politicians, financial patrons are entitled to get that. And I'm listening to you talk, I'm listening to you say, I didn't really agree with the outcome of that case. And it feels to me as though, you know, here we are at this moment, Judge Gertner, where people are so angry. They hated Citizens United. You know, it is one of the most hated decisions the court has handed down, certainly in my career. And it feels as though the effect of what you're saying is, well, you know, it said what it said, so more access. And I think that in a moment where there's such mistrust of, you know, the interplay between money and government and the influence of money in elections, that. That it just, I think, probably surprised a lot of people. I'm probably not the first person to say this to you. It surprised, I think, a lot of folks that lions of, you know, progressive thought like you and Professor Ogletree are saying we're kind of chucking up our hands and saying, you know, if Citizen United gave us a right to access for money, then access for money it is.

B (20:54)

I think that what you're hearing from all of us was something different. I think it was a question. It's uniquely a question of the limits of the criminal. So, no, I don't have any problem saying that I disagree with Citizens United. I take Larry Lessig's point that corruption is endemic in American politics. I just think that the tool with which to deal with that is not the criminal law, where an individual prosecutor can completely determine what line he chooses to draw. So it's a question of line drawing and it's a question of clarity and taking the Supreme Court as having deeply muddied this area with Citizens United, you can't use the criminal law now to clarify it.

A (21:44)

And I think maybe the most emblematic illustration of your point is a colloquy that John Roberts has with Michael Treben, again representing the Solicitor General's office, where they're saying, so it's okay if somebody who wants something takes you trout fishing, but not OK, if he takes you to Hawaii. Right. Because that's the kind of incredibly bizarre arcane line drawing you're forced into under this criminal statute.

B (22:13)

Right, right. I mean, either you look at what was given or you look at what was done, quote, in exchange. So if you look at what was given, are we going to have sort of a pecking order of when the amount is too much? You know, a golf trip is okay, but Hawaii is not. And then when you look at what it is, quote, in exchange for the Lincoln Bedroom, I hate to use that old saw, but the Lincoln, you know, sleeping over in the White House, is not a problem. But, you know, sitting next to me in the, in the governor's table is I mean, that's the problem of line drawing. And if you want to regulate this behavior, you regulate it, you do it up front. You say this is permissible, this is not. And you draw the lines clearly. But you don't enable individual prosecutors to contort the law as they see fit.

A (23:08)

Judge Gertner, can I ask you a question that is unrelated but has everything to do with something that happened in the very last few minutes of oral argument and I'm going to ask you to react to it? This is also unfair to Noel Francisco, who is an extraordinary oral advocate, really, really at the top of his game. Here's him in his rebuttal talking to just Ruth Bader Ginsburg.

C (23:34)

There are lots of other statutes that would prohibit precisely what you are suggesting, Justice o', Connor, and you don't have to interpret that.

A (23:42)

Hasn't happened in crisis.

C (23:44)

Justice Ginsburg, I am very, very, very sorry. Justice Ginsburg, my apologies. There are lots of other statutes that would prohibit that precise conduct and you.

A (23:55)

Don'T need so Judge Gertner, I would not ordinarily ask anyone, but I'm going to ask you because you and I have been on panels about women judges. I think about this obsessively. You've written about it obsessively. Can you just tell me what your reflexive reaction is to, you know, the kind of slip up that I should be clear. You know, again, this is not an indictment of Noel Francisco. This happened every term that Ginsburg and o' Connor sat on the bench together. Someone called them by the other's name, right. At one point they had T shirts that were made for them as gifts that said I'm Ruth, not Sandra. I'm Sandra, not Ruth. As a woman, as a federal judge, what do you think about when 10 years after she's retired, poor Noel Francisco calls Justice O', Connor, uses her name when he's talking to Justice Ginsburg?

B (24:49)

Well, I mean, let me say, let me put it in context. Justice Breyer loves to talk about how he was constantly mistaken for justice suitor. Right. And so I'm not sure where it fits in that regard. I mean, but certainly the general rule that we're all alike, you know, that you can't tell one of us apart from the other is of concern here. I don't think that that's particularly I wonder whether it was just, I mean, I think that that's sort of emblematic of that kind of problem but there are so many things that are going on in the national politics today that is far worse and far more stereotypical that this one gives me less pause than the rest of them.

A (25:33)

Yeah, I think it gives me no pause other than its hilarity. But I do think, I guess because it happened on, you know, the same day as the woman card was being touted, that I did want to hear you, you know, if you had any thoughts about what it's like these days. I know, you know, watching three women justices at the court, as opposed to back in the day when we used to watch one and then two for a while and then one again. Does it feel different?

B (26:01)

You. It absolutely feels different. It absolutely feels different. I mean, when you talk about affirmative action, for example, we talk about what a critical mass was, what's the number of people who are minorities or women, that will make a difference to the discussion. And I think that having three, I think having four, I think having all would make a difference to the discussion. And I think that that's what you're seeing here. It's certainly not enough, but it makes a difference to the, to the discussion. I think that the stereotypes are sort of lurking in the air. Notwithstanding that. I don't know whether you want to go into this, but no one has covered the fact that at one point over the past couple of days, Trump talked about who looks presidential, and there was a line in which he said, look at Hillary Clinton. Does she look presidential? Well, I've been doing discrimination cases. I'd been doing them for 20 years before I became a judge. And it was really classic to have the guy who voted against tenure, for example, to say, well, you know, she just doesn't look like the chair would look like. And of course, that's clearly because the incumbents of all of these positions were never women. So, of course, women didn't look like an incumbent incumbent. So it's an ongoing theme. But, you know, I don't think it happens much anymore on the supreme as much on the Supreme Court at all. So I think it's emblematic of Noel being nervous more than anything else.

A (27:39)

I completely agree, and I feel bad that I even posted it on Facebook. Nancy Gertner, a former federal judge for the U.S. district Court in Massachusetts, retired from the bench in 2011, teaches at Harvard Law School and is the author of In Defense of Memoirs of an Unrepentant Advocate. Judge Gertner, what a joy to have you on amicus. Thank you for joining us.

B (28:01)

Thank you so much.

A (28:05)

And that is going to do it for today's last argument of the term episode of Amicus, but we are so looking forward to hearing your thoughts about today's show. Our email is amicuslate.com and we really, really love your letters. Thank you. We also love reading the reviews of Amicus you've been leaving on our itunes page. It's a terrific way to help other people find out about our podcast. And if you haven't already left one of your own, kindly search amicus in the iTunes store, click the Ratings and Reviews tab and fire away. Remember, if you've missed any of our past shows, you can find all of them@slate.com we also post transcripts there, but they do take a few days to post and you do need to be a Slate plus member to access them. But you can sign up for a free trial membership to slate plus@slate.com amicusplus thank you as ever to the fabulous Virginia foundation for the Humanities where our show is taped. Our producer is Tony Field, Steve Lichtai is our executive producer, and Andy Bauer is the Chief Content Officer of Panoply. Amicus is part of the Panoply Network. Check out our entire roster of podcasts@itunes.com Panoply I'm Dahlia Lithwick and we will be back with you soon for another episode of Amicus.