While the decision in Whole Woman’s Health will dominate the news today, I note the other two cases of interest that came down today, as well.
In McDonnell v. United States, a unanimous Court – per the Chief Justice – vacated Governor McDonnell’s conviction under federal anti-corruption statutes, including honest services fraud and Hobbs Act extortion. Though the term “official act” appears in the federal bribery statute but not the honest services statute or Hobbs Act, the parties agreed that this prosecution would use the bribery statute’s understanding of “official act” as the basis for applying the other relevant statutes. See 18 U.S.C. 201(a). The Court held that McDonnell’s jury received erroneous instructions on the meaning of an “official act.” An “official act” is a “decision or action” on a “question, matter, cause, suit, proceeding, or controversy.” But “setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act,'” the Court held. Consequently, because the Court gave a narrowing construction to the statutes, there was no need to invalidate either the honest services statute or the Hobbs Act as unconstitutionally vague.
Rather than say whether McDonnell’s conduct fits the understanding of “official act” that the Court supplied here, the Court remanded the case to the Fourth Circuit to reconsider that question under the new standard. So McDonnell is not out of the woods yet. But his case is demonstrably stronger now. And one wonders whether DOJ might be well-served to let go of this one.
While the Court’s reading of federal law is defensible as a matter of interpretation, I continue to believe this case was decided largely on concerns about the separation of powers, and perhaps even federalism. This was a point that Justice Breyer articulated during oral argument, and I think the opinion tries to account for those concerns. As the Court’s opinion explains, there was concern that the broad theory of the case that the Government had posited would have a chilling effect on governmental action in the political branches. That is, elected officials might be wary of providing some service to, or meeting with, a constituent or citizen for fear of crossing the bounds of a prohibited quid pro quo. Moreover, the Court explained that it had concerns about applying federal anti-corruption statutes in a way that would impose federal standards of conduct upon state and local officials and potentially displace state and local ethics or criminal laws. Remember that Virginia did not pursue charges against McDonnell.
The remaining case today was Voisine v. United States. There the Court held that a conviction for reckless assault on a domestic partner constitutes a “misdemeanor crime of domestic violence” for purposes of 18 U.S.C. 922(g)(9). Using the definition in 18 U.S.C. 921(a)(33)(A), which requires the “use of . . . physical force,” the Court held that a reckless assault involves the use of physical force just the same as intentional or knowing assault. Practically speaking, this means that a person with a conviction for a reckless domestic assault is forbidden under federal law from ever owning a firearm.
As sometimes happens in close cases like this, the Court’s opinions turned into a rather abstract debate on the criminal law. If you like mens rea theory, you’ll love Justice Thomas’s dissent. But beyond the high-level (and, yes, important) debate over the meaning of various mens rea terms, this case involved the serious matter of domestic violence committed by two men from Maine who also owned guns. When officials began investigating Voisine for killing a bald eagle, they learned that he had a conviction under Maine law for reckless assault on his girlfriend, and that he owned a rifle. Armstrong had a similar conviction for assaulting his wife. Then, when he was the subject of a drug investigation, law enforcement officers found six guns and a large amount of ammunition in his home. The Court found that these prior convictions were sufficient to bring both men within the ambit of 922(g)(9).
This case is a victory for proponents of tighter restrictions on firearms ownership. But the Second Amendment implications did not escape Justice Thomas. In a portion of his dissent in which he wrote only for himself (Justice Sotomayor joined the others parts of his dissent, but not Part III), Justice Thomas lamented that the Court’s broad understanding of the firearms possession disability here was likely unconstitutional. Thomas clearly indicated this possibility at oral argument, when he broke his ten years of silence by asking the Government a question about the Second Amendment implications (“can you give me another area where a misdemeanor violations suspends a constitutional right?”).
I will have a bit more on the Thomas dissents in Voisine and Whole Woman’s Health in a subsequent post. I see them as connected.