I’m going to post some thoughts on the Paul Minor oral argument before I read any of the online stories; I’ll post about them later. A partial transcript of the oral argument in the Paul Minor case is online at the Raw Story site, here. The primary issue in the appeal, at least from a reading of the briefs, is about whether the jury was properly instructed about the quid pro quo requirement for bribery.
Recall what the conviction is about: Paul Minor guaranteed bank loans to two judges, Teel and Whitfield. The loan to Teel was while he was running in a judicial election and was used on the campaign. Whitfield used his loan to buy a house. Minor later had one case before each judge and won a big victory in each; while Teel paid some of his loan before that, after the victory Minor paid off both the loans to Tell and to Whitfield.
The primary issue was about what exactly was required for the government to prove a quid pro quo. Did the government have to prove an actual exchange of promises at the time of the payment (that is, at the time Minor signed the loan documents)? Minor’s side is arguing that the jury instructions were defective because they did not require the jury to prove that there was a deal to get the benefit of a ruling struck at the time of the payment. He’s arguing that there has to be something quite like a bargained for exchange of promises, and not a loose acquisition of good will (as it were) producing the later ruling. The Government is arguing that the instructions allowed the jury find that Tell and Whitfield were going to rule favorably in some unknown case later, and that is enough.
The questions from the court were interesting. Judge Haynes closely questioned Minor’s lawyer, Abe Lowell, about whether signing off on someone’s loan could really be called a “campaign contribution.” He said: “I’m having trouble understanding how guaranteeing a loan for somebody’s house has anything to do with the campaign contribution.”
A central feature of Minor’s argument is that campaign contributions have special First Amendment status, which he argues requires a tight linkage between the exchange of promises. He’s basing the First Amendment part of the argument on a US Supreme Court case called McCormick v. U.S. in which a congressman was prosecuted on the theory that a bribe was shown by links between campaign contributions by a doctor group andaction on legislation. Another circuit court has described the holding in McCormick:
McCormick recognized several realities of the American political system. Money fuels the American political machine. Campaigns are expensive, and candidates must constantly solicit funds.… It would be naïve to suppose that contributors do not expect some benefit—support for favorable legislation, for example—for their contributions.
A campaign contribution followed by favorable action isn’t enough– there must be a linkage, says McCormick. The problem Judge Haynes was keying in upon was that these weren’t normal campaign contributions– and with Judge Whitfield, weren’t even used for the campaign. Lowell’s answer was essentially that this was what a properly instructed jury would have to decide– a decent answer. I’m having a little trouble deciding how the defense jury instructions might look. I understand the argument for requiring an exchange in the basic bribery instruction. But then shouldn’t the jury be told there’s a diference between a contribution and an under-the-table payment? That sounds like dangerous turf for the defense, particularly in this case.
The Government, by the way, argued that there was enough of a requirement of an exchange in the instructions. Later, I’ll try to dig out the actual language of the instructions.
When Teel’s lawyer got up, Judge Garwood keyed in on a very different part of the appeal– that the statute here criminalizes what is called “federal program” bribery– the officer being allegedly bribed must have charge of federal dollars. Garwood wanted Teel’s lawyer to talk about whether there had to be a nexus between the supervision of spending federal dollars and the particular decision that was what the judge allegedly gave for the bribe. Clearly there is no nexus between the federal dollars (used for court expenses) and the decision in the particular case. If that is required, it is fatal to the prosecution.
If this argument is sound, it involves a principle that may well have been fatal to the prosecution in Scruggs I (or for that matter to the bribery part of Scruggs II, although not to the mail fraud part). Scruggs did raise this issue but lost before Judge Biggers (the motion can be found here)
Judge Haynes questioned the government closely about the linkage required between the payment and the case:
And how much — well, let me ask you this. What is your context of what that agreement was? Because in neither of these two cases that we have been presented were pending in front of those judges at that time as I understand it. And one of them wasn’t even a judge yet he was a candidate. So he might never have a case. But all right. The idea is you will win and you will rule for me on this case but it’s not yet pending. So what was the agreement as you present.
Ms. Collery for the Government “The agreement was you will take this money and in some future case you will rule
dishonesty for me. “ Judge Haynes drove the point harder:
But what is the deal? In other words, if you could enforce this contract or they are paid the money now the judge rules honestly against you. How did that judge know it was that case that they were supposed to rule dishonestly. That’s what I’m trying to say. What is the deal as the government presented it? …
Just any case? Because these lawyers Mrs. Minor had 700 cases and he is this Jones act guy and he is all over the country. So in this case in their court with Mr. Minor or what about Mr. Minor’s firm Mr. Minor’s friend Mr. Minor’s friend?
MS. COLLERY: The deal I will make sure you get a case and in both of these cases there was Mr. Minor engaged in actions that channeled a particular case to these judges. It was part of our case to show that there was forum shopping here in regard to both of the cases.
JUDGE HAYNES: I understand that and the clerk come in and assign the cases. My question is was every case the deal I will give you this money and every case I have as lawyer or my firm has a lawyer in your court you are going to rule for us whether that is the right result or not? Don’t you have to be able to articulate the deal?
When Collery was responding, Judge Garwood chimed in: “You are going to rule for me where?” This exchange closely followed:
JUDGE BENAVIDES: The actual transaction which provided the quid pro quo as opposed to some generalized feeling that the jury might still be able to convict if they thought that the money might be used on some generalized transaction in the future?
MS. COLLERY: No, the only evidence of what the quo was was those two lawsuits, and the instructions required –