Podcast Summary: Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: "This Is Not Corruption" (April 30, 2016)

Main Theme

This episode explores the Supreme Court case McDonnell v. United States, focusing on the boundaries of federal anti-corruption laws and what constitutes an "official act" under these statutes. Host Dahlia Lithwick is joined by Judge Nancy Gertner, former federal judge and current Harvard Law professor, to discuss the implications for public officials, the dangers of vague criminal statutes, and the broader context of money, power, and politics post-Citizens United.

Key Discussion Points & Insights

1. Backdrop of the McDonnell Case

• Former Virginia Governor Bob McDonnell and his wife were convicted on multiple public corruption charges for accepting $177,000 in gifts and loans from businessman Johnny Williams Jr., in exchange for access and potential influence regarding state university drug testing.
• The legal crux: Whether McDonnell’s actions—arranging meetings, making calls, speeches—constituted "official acts" that violate federal anti-corruption statutes, despite these gifts being legal under Virginia law.
  [02:58–04:28]
• The Supreme Court agreed to review McDonnell’s conviction, questioning the breadth and clarity of what federal law prohibits.

2. Understanding Federal Anti-Corruption Statutes

• Judge Gertner explains that the Hobbs Act was crafted to address clear quid pro quo corruption—essentially a direct transaction (“I give you money, you give me a contract”).

• Over time, prosecutions have pushed gray areas—such as breaches of "honest services" that don’t involve explicit exchanges.
  [05:07–07:30]

• Notably, the Supreme Court narrowed the scope in Skilling v. United States, and Citizens United complicated campaign finance norms, suggesting campaign contributions for "ingratiation and access" are integral to American politics.

  “The Hobbs Act was intended to deal with… 'I give you money and you get me the contract.' …But over time… prosecutors used them to deal with government officials who had a conflict of interest… no money was exchanged for a particular task.”
  — Judge Gertner [05:07]

3. What Is an “Official Act”?

• The Justices grappled with the difficulty of drawing lines around what constitutes an official act:

  • Must an official actually make a government decision or just arrange access?
  • Dahlia Lithwick presents a test suggested by McDonnell's legal team: Only if an official "does something or makes someone else do something" in exchange for gifts does it rise to corruption.
    [10:05]

  “The line is between access to decision makers…and trying to influence those decisions on the other.”
  — Noel Francisco (McDonnell’s lawyer) [10:37]

• The Court voiced skepticism, noting that a governor’s request—even just urging a subordinate—can carry strong implicit pressure.
  [11:36]

4. Vagueness, Prosecutorial Power, and Separation of Powers

• Justice Breyer expressed concern about the vague boundaries of federal anti-corruption laws:

  • Risk that officials won’t clearly know what is illegal.
  • Risk that prosecutors could selectively target politicians without clear legal boundaries.
    [14:13]

  “…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… is dangerous in the separation of powers.”
  — Justice Breyer [14:13]

• Judge Gertner agrees, citing Justice Robert Jackson: Ambiguity lets prosecutors “pick the person he wants to prosecute and then determine the charge.”
  [15:53]

5. Implications of Citizens United and the Role of Criminal Law

• Lithwick points out that post-Citizens United, even progressives like Gertner are left arguing that ingratiation and access for money is, legally, acceptable. But, both agree that dissatisfaction with the decision shouldn't lead to using the criminal law as a blunt tool for reform.
  [18:01–21:44]

• Judge Gertner underscores: If we want to draw lines about access and gifts, legislatures should do so explicitly, not leave prosecutors to test the boundaries retroactively.

  “…if you want to regulate this behavior, you regulate it, you do it up front… But you don't enable individual prosecutors to contort the law as they see fit.”
  — Judge Gertner [22:13]

6. Women in the Judiciary: A Moment of Supreme Court Humor

• Lithwick recalls a lighthearted slip during arguments: McDonnell’s attorney calls Justice Ginsburg "Justice O’Connor," prompting musings about the perception (or confusion) of women on the Court.
  [23:34–25:33]

• Gertner’s response: While emblematic of lingering stereotypes, things have improved, and the presence of multiple women justices has changed dynamics.

  “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… But I think that’s emblematic of that kind of problem but there are so many things going on in the national politics today that are far worse and far more stereotypical.”
  — Judge Gertner [24:49]

Notable Quotes & Memorable Moments

• Vagueness and Prosecutorial Power:

  “…if the law is ambiguous, then it enables a prosecutor to pick the person he wants to prosecute and then determine the charge.”
  — Judge Gertner [15:53]

• Humor on Campaign Finance Culture:

  “The lunch with the Chateau Lafitte wine happens to be the quid. And that's worth like $1,000 or 500. Anyway, I don't go to those restaurants anymore…”
  — Justice Breyer [17:39]

• The Limits of Criminal Law:

  “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.”
  — Judge Gertner [20:54]

• On Progress for Women Justices:

  “It absolutely feels different… I think having three, I think having four, I think having all would make a difference to the discussion.”
  — Judge Gertner [26:01]

Timestamps for Key Segments

• 00:00–03:01: Introduction, recent SCOTUS news, McDonnell case setup
• 03:01–05:07: McDonnell’s legal troubles and trial summary
• 05:07–07:30: Federal statutes—Hobbs Act and honest services—explained
• 10:05–11:36: What counts as an “official act”; Supreme Court Justices query the limits
• 14:13–15:06: Justice Breyer's concerns with vagueness & separation of powers
• 15:53–17:18: Gertner on prosecutorial discretion & risk of arbitrary charges
• 18:01–21:44: Citizens United, criminal law’s appropriateness, and the difficulty of line drawing
• 23:34–26:01: Gender, Supreme Court culture, and the "Justice O’Connor" slip

Tone and Language

The conversation is incisive yet conversational, balancing humor (e.g., the "Chateau Lafitte" riff) with the gravity of legal ambiguity and public trust in government. Judge Gertner’s expertise grounds the discussion, while Lithwick ensures accessibility for a non-legal audience.

Summary Takeaways

• The McDonnell case spotlights confusion at the heart of federal anti-corruption law: Where's the line between political access and criminal quid pro quo?
• Judicial skepticism centers around criminal statutes that are too vague, granting prosecutors excessive power and creating risk for routine political behavior.
• Major Supreme Court precedents (Citizens United, Skilling) have muddied the waters, further complicating enforcement.
• Real reform should be explicit and legislative, not left to prosecutorial discretion via unclear criminal law.
• Gender representation on the Supreme Court has improved, but subtle stereotypes linger.

This episode will resonate with listeners interested in legal nuance, the intersection of politics and criminal law, and ongoing debates over money, power, and access in American democracy.