Blue Mass Group

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Explaining the McDonnell Decision – Calling Out Mass Bar Association & Martin Healy – Not Sure Even Elizabeth Warren Can Save Hillary

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Some BMGers are in a tizzy over the McDonnell decision because they think it gives public officials carte blanche in the gifts v. wink wink nod nod department. It doesn’t.

It does a few things however.

First it tells us the US attorney is over reaching by going into each state and determining what is and what isn’t a federal crime for elected officials under at best ambiguous language in federal laws. Because federal law is silent on state officials accepting gifts (federalism, remember/) and a necessary part of elected office is to introduce constituents, supporters, business people, lobbyists, corporations, charities, donors, neighbors and anyone they choose to government officials, constituents, supporters, business people etc… the feds cannot convict if it only establishes a gift and and act. It must prove beyond a reasonable doubt that the gift was only given with the purpose and expectations of both sides.

However cases like Diane Wilkerson, Chuck Turner, Vinny Piro, Joe DiCarlo, Ron McKenzie, and I’m pretty sure Sal DiMasi  are still kosher under the McDonnell case. You take money or gifts in exchange for a vote or lobbying a product over an entity whose budget you control or something then the feds can step in and indict. And they should. But you need evidence of the illegal promise.Tough I know. But remember this is for federal crimes.

The court said the states can set their own rules for the ethical behaviors of their public officials. It’s up to them. States’ rights, capiche? Most have ethics laws which dictate gifts and official acts etc. It is against the law in Massachusetts for a political to do what slime ball McDonnell did in Virgin-eye-aye. Sheet. It’s against the law in Massachusetts for are politician to make a call recommending a constituent for a job.

But what we can’t have is over reaching US attorneys making federal corruption crimes out of routine acts. As always with case law the most outrageous set of facts are needed to drive home a point. The point here is that although McDonnell is a sleaze ball who gamed the system it is better to let him go free, fix the system, reprimand unethical overzealous prosecutors, and give the one-dimensional former assistant US atty federal judges a reminder of who their boss is.

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So this tool running the Mass Bar Association Martin Healy is raving about Charlie Baker’s one time move of appointing the three stooges to the Supreme Judicial Court.

You see folks neither of these three are qualified. Because they do not come from the appeals court or published academia or appellate practice of law they have no record to work from.

Like calling up three random pitchers from the farm system double A to be in the permanent staring rotation for the big league team. Forever. Turns out the pitchers are all sons of friends of the owners. (Remember Marc Sullivan?)

Usually a governor would pick from the appeals court then move his buddies and the spouses of his buddies and the kids of his buddies who are in the superior court to the appeals court to replace the three vacancies. Then he moves two maybe three district court people up then he gets to make three brand new judges.

Now every governor gets some freebies. No problem. You get one for the SJC even. Just one. Send up two qualified names and one non-qualified special favor like Wayne Budd’s kid or Ginny Buckingham’s husband or one of the crony good ole boys.

Anyway this  Healy guy is paid $300,000 a year by the state’s lawyers to keep an eye on things and took look at this tri-fector Bakes trotted out and said fantastic. “Diverse backgrounds” was his cheer. Are you shitting me. Heavy on prosecutors, nothing on criminal defense, only Budd has some civil experience before her appointment. Very limited at that.

I can’t think of anything that a governor could do which shows more disrespect to our system of jurisprudence. The MBA dude is out of touch with the common man. No empathy, sympathy, patience, understanding, or time for individuals or institutions which are not and never have been part of his world.

This is exactly why we have a governor’s council.

—

Ok, have you and a friend ever been tripping and hook up with someone who is not tripping only they don’t know you and your friend are tripping and you and your friend keep laughing hysterically and the more you laugh the more the unaware non tripping friend gets pissed off and yells and balls you and your tripping friend out for being jerks and the more mad he gets the more you laugh until he finally he says “fuck you, I can’t take you anymore,” and leaves?

You now what I mean? How no matter what the non-tripping guy says or does he will be unable to relate to his tripping friends and he will be unsuccessful in convincing them to stop laughing? His lobbying efforts only make it worse.

That’s Hillary. We are all tripping except for her and the Hillaryites. The best she can do is shut-up, stay out of out sight, and let us figure it out for ourselves before November because she ain’t helping.

 

 

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Comments

  1. > First it tells us the US attorney is over reaching by going into each state and determining what is and what isn’t a federal crime for elected officials under at best ambiguous language in federal laws.

    No such thing. The Supreme Court decision has effect on one case (McDonnell) and on one issue (definition of ‘official act’ in context of the federal bribery statute).

    Nowhere in their decision do they make the blanket statement that US attorneys are overreaching when “going into each state”.

    • Here, where a more limited interpretation of “official act” is supported by both text and precedent, we decline to “con- strue the statute in a manner that leaves its outer bound- aries ambiguous and involves the Federal Government in setting standards” of “good government for local and state officials.” McNally v. United States, 483 U. S. 350, 360 (1987); see also United States v. Enmons, 410 U. S. 396, 410–411 (1973) (rejecting a “broad concept of extortion” that would lead to “an unprecedented incursion into the criminal jurisdiction of the States”).

      You’re welcome.

        • The Supreme Court made a unanimous decision. UNANIMOUS. That’s a big deal. Ruth Bader Ginsburg didn’t forget to show up. She didn’t go along with the crowd because she didn’t feel like arguing. The fact that this decision was unanimous should invoke some intellectual humility on your part, not lead you to double down.

          Your trollishness is evident in this comment: “U.S. attorneys should not go into each state.” That’s just stupid. It’s not what Ernie, quoting caselaw said. This quote is equally stupid: “$175,000 in gifts, loans, a Rolex for the Governor – is that a routine act? Who else do you know to be accepting such bribes?” The routine act applies to the elected official, not the other person. Furthermore, giving people money is nota bribe. There has to be quid pro quo, as I pointed out in another comment. There is no quo here.

          Assuming that you’ve finally wrapped your head around bribery, SCOTUS Blog has a Symposium that explains the official act part of the decision:

          the Court adopted an interpretation of the “official act” requirement that limited the reach of federal bribery law in three ways: (1) the official act must concern an issue that is specific and concrete (“the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete”), (2) that issue must “involve[ ] a formal exercise of governmental power that is similar in nature to a lawsuit, administrative determination, or hearing,” and (3) an official must render a “decision” or take “action” on such an issue or use his position to exert pressure on or advise another official to take such an action.

          The authors explain,

          “By adopting a sensible interpretation of the reach of federal bribery law, the Court has done much to cabin the temptation for federal prosecutors in this politically charged context to pick defendants they think they should get, rather than cases that need to be prosecuted.”

          In other words, an overly broad statute would allow federal prosecutors, who make their careers on (often high-profile) convictions, to pick and choose cases. Imagine a Republican or Democratic Attorney General sending out prosecutors to indict people for political reasons with the support of a law that allows them to pick and choose.

          Ernie and the Supreme Court are right on this one.

            • They picked the wrong case to make their point. Does anyone really believe the $175,000 given to the McDonnells was not a bribe?

              Why could they not pick a real case of prosecutorial overreach, if they professed the overreach had to be stopped?

              I don’t care that the Supreme Court voted 8-0, it is still wrong.

                • dense? Since you’re an MIT grad, I don’t believe you are stupid. I don’t understand your comments. No one disagrees with you about the morality of the situation. Everyone understands you don’t like the situation. Do you have to be obstinately wrong to express your dislike?

                  As Hannibal Lecter said, “Qui pro quo, Clarice. Quid pro quo.” We have evidence of a quid. No evidence of a quo.

                • …representing the spectrum of jurisprudence did not see the evidence for “in exchange for”.

                • This was a political decision to roll over quasi unanimous interpretation by the lower courts, in order to give some breathing space to powerful state politicians who feel federal prosecutors breathe down too closely their neck.

                  But, to achieve its goal, the Supreme Court was not able to find a case where a Governor got a free lunch or free baseball tickets in exchange for a constituent ingratiating himself. They could not find a case of prosecutorial overreach; or of unreasonable juries; or of small time crooks being sentenced to decades of prison.

                  All they could find in their docket was Bob McDonnell, who had extorted in grand style – more than $175,000 in payments, loans, gifts, a Rolex, to set up meetings & promote with other state officials a businessman’s dietary supplement.

                  So they decided to make their stand with McDonnell, and let him scot free, pretending his $175,000 is no different than the customary free lunch and baseball tickets that the Justices themselves are hooked on – and that are common currency for wealthy constituents willing to ingratiate themselves with powerful public servants.

  2. It’s against the law in Massachusetts for are politician to make a call recommending a constituent for a job.

    Wow. They really have nothing to do all day.

    • The State Ethics Commission makes it clear when politicians can make recommendations, an excerpt quoted here:

      II. Recommendations by Elected Public Employees

      An elected public employee may use his public position to recommend for employment a person who is a current or former employee of the elected public employee in the office in which he is currently serving, or a person whose qualifications for employment the elected public employee learned in the course of his current public duties, provided that the elected public employee has reason to believe, based on those contacts, that the job applicant is qualified for the position for which he is applying.

      Recommendations of Constituents

      Elected public employees may also use their public positions to recommend their constituents. “Constituent” is not defined in the General Laws, nor is it defined in Commission precedent. Because elected public employees may have responsibilities to Commonwealth residents outside their specific districts, for purposes of the conflict of interest law, the Commission will consider an elected public employee’s constituents to be any person residing in the Commonwealth, whether or not they reside in the elected public employee’s specific district, county, or city or town. As with any other official action by an elected public employee, recommending a constituent for employment is subject to the conflict of interest law.

      To comply with the prohibition against giving unwarranted privileges imposed by § 23(b)(2), an elected public employee should have some reason to believe that the constituent possesses the minimum qualifications for the position for which he is being recommended. The elected public employee may already be familiar with the constituent’s qualifications for the desired position. If not, the elected public employee should obtain sufficient information to satisfy himself that the constituent possesses the minimum qualifications for the position before making the recommendation.

      For the complete language see:
      http://www.mass.gov/ethics/education-and-training-resources/educational-materials/advisories/advisory-13-1-making-receiving-recommendations-for-employment.html

        • Wrong again Ernie, at least according to the AO from Ethics I cited above. It states:
          In determining whether a public employee’s oral (emphasis added) or written recommendation is consistent with the conflict of interest law, the Commission will consider all the circumstances to determine whether the recommendation was accompanied by pressure, in violation of § 23(b)(2) of the conflict of interest law.

          • the Commission will consider all the circumstances to determine whether the recommendation was accompanied by pressure, in violation of § 23(b)(2) of the conflict of interest law.

            So a politician can violate the law by reccommeding a person for a job and some nameless/faceless bureaucrats and prosecutors consider all the circumstances and make decision if the political is corrupt.
            Why would an official do anything for anyone when so many unknown things can be used as vehicles to accuse someone of corruption.

            • You are wrong for a third time, Ernie, and for a guy who seems to have so much info about some of the inner trappings of government it is genuinely surprising (and I mean that sincerely).

              As the Ethics Comm AO explicitly states, it is NOT a violation of the law for an elected official to recommend a person for a public sector job. Period. Just follow the rules, Mr or Ms Politician. Period.

              Please read the link I provided and stop making stuff up. I think you have some interesting opinions but you undermine them by your unwillingness to go silent when you are proven wrong, dead wrong.

  3. > But what we can’t have is over reaching US attorneys making federal corruption crimes out of routine acts.

    $175,000 in gifts, loans, a Rolex for the Governor – is that a routine act? Who else do you know to be accepting such bribes?

  4. unless your are stupid enough (like possibly, aides to our Gov) to record or define a specific agreement you can do whatever the hell you want.

    Unless the pol is a complete moron and has the agreement on tape or paper or maybe a witness (like above, we’ll see where that goes) then they are scot-free.

  5. My read of all this sounds as though more legislation is required.

    I enthusiastically agree with andreiradulescubanu that the $175,000 in question was CLEARLY, to me, corrupt. I don’t care whether we call it a bribe, an “illegal contribution”, or what — I just don’t believe that a “gift” like this came without strings. I also agree with markbail that a unanimous SC decision is not something to ignore.

    It sounds to me as though the SC is saying, in effect, “This is the law as it stands today. If you don’t like the results, change the law.”

    • Then your panties won’t be in a bunch. Calm down there tiger. Maura Healy can prosecute anyone in MA for things like this. We have strong anti-corruption laws. Virginia didn’t. Now they do.
      There are so many protections for the average citizen in this opinion. Protections for people like you and other BMGer types who are inclined to be active in politics or pubic advocacy.
      The feds were getting crazier and crazier with their interpretation of honest services. If you donated a hundred bucks to a local or state politician and then he voted for a law you were strongly in favor of because it helped your business or introduced you to a government official who might help your business then if Fred Wyshak and his ilk wanted they could indict you and the politician for violating the honest services act. Oh sure they will sexy uptake indictment and point to some factors that mean nothing such as social contacts
      etc.
      The indictment of this Sullivan kid reads like there is something there but when you break it down there is nothing.
      And now the media wants to know if he will “flip”.
      Funny how the press doesn’t define flip. What it means is wether or not the defendants (Sullivan and Brissette) know of illegal wrong doings by the mayor and if they do not then will the be forced to lie because sticking to the truth will probably ruin the family for a long time.
      It’s called torture. That is why they arrest these guys in their pajamas early in the morning rather than let them appear in court for their arraignment.
      Open your minds for crissake. Corruption is not benefitting from this decision. Rather mean bastards are being leashed.

      • We’re talking about a sitting governor accepting a “gift” of $175,000. You’re talking about some kid. We agree that Massachusetts has tough laws, and Virginia does not (or did not).

        Martha Coakley chose to look the other way during her entire term. You got YOUR panties in a bunch when the feds took down the Probation Department conspirators after she did NOTHING. Too bad they didn’t get Mr. DeLeo. So much for those “tough” Massachusetts laws.

        You tell me to open my mind. I invite you to open your eyes … “for crissake”.

        • you know more than the each member of the United States Supreme Court.
          Complain to them.

          • I am not challenging the Supreme Court, that’s the point of my comment.

            I suggest that the Congress needs to act to change this at the federal level. That’s not a challenge to the Supreme Court.

  6. I actually don’t think 175,000 is, per se, a bribe. it’s omerta.

    I’m reminded of a Vanity Fair piece about Jack Abramoff, in which someone is quoted thus:

    “People are missing the completeness of the corruption. It wasn’t ‘I’ll get ou a boar, I’ll get you a hooker.’ It was an omerta thing, more like ‘I will grant your every wish.'”

    I’m just guessing here, but I don’t think McDonnell is as dumb as “Hey, I bought your wife a watch — show me some legislation!” The guy just wanted the governor to think well of him.

    So in that sense it wasn’t “corruption.” It was arguably worse.

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