tv Politics and Public Policy Today CSPAN June 27, 2016 12:25pm-2:26pm EDT
>> we didn't put in the evidence because petitioners bore the burden. >> did you ask in this evidence? >> no. >> thank you very much. i'd like to go back to the question that justice ginsburg was asking which is about what is the benefit of this procedure. there are two laws. i'm focusing on the first law. the first law says that are a doctor at the abortion clinic must have admitting privileges in a hospital 30 miles within that -- nearby, right? >> correct. okay. prior to that law the law was that the clinic had to have a working arrangement to transfer such a patient correct? just reading it. >> that's correct. >> so i want to know, go back in time to the period before the knew l
new law was passed. where in the record will i find evidence of women who had complications who could not get to the hospital even though there was a working arrangement for admission but now they could get to a hospital because the doctor himself has to have admitting privileges. which were the women? on what page does it tell me their names, what the complications were and why that happened? >> justice breyer, that is not in the record. >> but -- so judge posner then seems to be correct when he says he confined in the entire nation in his opinion only one arguable example of such a thing and he's not certain that even that one
is correct. so what is the benefit to the woman of a proceed dwlayour tha going to cure a problem where there is not one single instance in the nation. perhaps there is one, but not in texas. [ laughter ] >> justice breyer, the national abortion federation prooeviousl recommended women use -- >> i didn't ask that. i'm sure there are people who had all kinds of reasons and would like to have this and so forth. i'm just asking you where we have a judicial duty to say whether this is an undue burden upon the woman who wants the abortion, there are two parts. is she burdened and what is the benefit? and now on the first one i've asked you to give a single example of an instance where there is a benefit and you say i think quite honestly there is no such burden.
so let's turn the second. the second one, according to the amicus briefs here which i guess i could validate, that even without the surgical center, leave it out, there are risks, quite correct. those risks are roughly the same as the risk that you have at a dentist's office when you have some surgery where you don't have an ambulatory surgical center. they are 28 times less than the risk of a colonoscopy where you don't have ambulatory surgical center. they are hundreds of times less -- you've seen these briefs. okay so i read them and you read them. and so what is the benefit here to giving the woman -- i can't say it's zero here -- this ambulatory surgical center when the risk is minuscule compared
to common procedures that women run everyday in other areas without ambulatory surgical centers? >> that has never been the test under "casey" about substantial obstacle. this court even before casey upheld an asc requirement in their -- virginia did not require brain surgery be performed in a hospital or asc, that's at 5043 of that oral argument transcript. it's whether the legislature has a legitimate purpose in acting. legislatures -- >> that's an interesting -- >> can the legislature say anything, general? if the legislature says we have a health-related abortion regulation here, we've looked around the country and we think that there are 10 great hospitals in the country, massachusetts general, brigham and women's, and we're going to make all our abortion facilities
conform to the standards of those hospitals and that will increase medical care. now, it's true we don't make anybody else doing any other kind of procedure conform to those standards but we think it will increase health benefits if abortion facilities conform to them. would that will be all right? >> under this court's precedent, abortion can be treated differently. >> so every abortion facility has to hit the standards of mgh? that would be all right? >> there would have to be medical evidence, it is minimum disputed. in here their experts have conceded that doctors believe -- there is where there's a medical disagreement, even if you don't accept our medical testimony, although it was admitted into the record. >> i'm sure there's medical evidence that if every facility was as good as massachusetts general they would be better facilities. i'm sure you could find doctors
to say that because mgh is a great hospital. but even though it's not applied to any other kind of facility doing any other kind of procedure. even though we know that liposuction is 30 times more dangerous but doesn't have the same kinds of requirements. >> that was the holding in semi-mop louse and -- >> well do you think -- >> would it not be the case that a state could increase the standards of care as high as it wants so long as there's not an undue burden on the women seeking abortions? so if they could increase the standard of care up to the very highest anywhere in the country and it wouldn't be a burden on the women, well, that would be a benefit to them. would there be anything unconstitutional about that? >> no, provided by women are able to make the ultimate decision to elect the procedure. >> but doesn't that show the undue burden test is weighed against what the state's interest is? >> justice kennedy --
>> are these two completely discrete analytical category, undue burden? we don't look at the state's interest. >> what casey noted was that the undue burden test is there a purpose or effect of substantial obstacle to access. that's a question to access. as to whether what the state's interest would be, that would be going to a rational basis review or a purpose-based analysis but you need the clearest proof under the court's general doctrine about unconstitutional purpose to infer there's an unconstitutional purpose when there's a legitimate interest in promoting patient health which is what texas did here. even roe v. wade said states can ensure maximum safety for patients. >> what is the legitimate interest in protecting the health -- what evidence is there that under the prior law, the prior law was not sufficiently protective of the woman's health? as i understand it, this is one of the lowest risk procedures.
and you give a horrible but pennsylvania but absolutely nothing from texas as far as we know this is among the most safe, the least risky procedures, an early stage abortion. so what was the problem that the legislature was responding to that it needed to improve the facilities for a woman's health? >> a petitioner's first lawsuit, planned parenthood admitted over 210 women annually are hospitalized because of abortion complications. here ja- -- >> as compared to childbirth. much riskier procedure, is it not? >> well, the american center for law and justice and former abortion providers' amicus briefs dispute that. >> is there really any dispute. [ laughter ] that child birth is a much riskier procedure than early
stage abortion. >> those amicus briefs point out when you look at record linkage statistics instead of complication reporting there may be a difference. the reason why reporting is important is there's in evidence the record that abortion complications are underreported. that's ja-844 and 870 to 72. >> by hospitals? underreported -- most of the complications you're talking about were reported at hospital, correct? >> well -- >> yes, there's some evidence of not reporting other things outside the hospital, but you know the number of hospitals are accurately reported? >> well, abortion clinics are -- have to report complications in texas and petitioner whole woman's health -- >> complications within their clinic. >> that's right, in ja 606 -- >> what's the percentage 20610 from 70,000? my math is pretty horrible. it's pretty small. >> and the statistic of ja 266 is that it is lower than 1%. however when there were two to three women --
>> i don't mean to negate that one should try to avoid injury to anyone and don't take my question as that. but there are people who die from complications from aspirin, maybe unusual but there's a certain percentage that do that yet we don't require people take aspirins in asc centers. or in hospitals. there has to be some tie between the benefit and the burden, doesn't there? >> in examining not effect but the purpose, the constitutional analysis would be that the texas legislature have an invalid purpose and -- >> don't you think you can read that from the fact that there are so many other medical treatments whose complication rates are so disproportionately higher and the legislature is only targeting abortion when
there is nothing about the figures before it that show a risk so unusual that it needs greater attention. >> but that would have been some mop louse. this is why petitioners are trying to upset the balance in casey. >> i don't see where this fits in. i don't question their purpose. i don't question their purpose. >> good, thank you, justice breyer. [ laughter ] >> but what their purpose is that they're worried about these complications and they want to make life safer for the women. let's take that as the purpose. you said there aren't very many complications. now would you say if you reduce the number of clinics as has been argued, maybe it isn't exactly that, but that and you suddenly have at least 10,000, maybe a few less and maybe a few
more women who have to travel 150 miles to get their abortion, maybe more, maybe stay overnight, maybe try to scrape together the money, you understand the argument. are there going to be more women or fewer women who die of complications due to an effort to create an abortion? i mean, you've read the briefs. you've read the same articles i have. and, of course, the argue system if you lead to self-induced abortion you will find many more women dying so if the concern is this tiny risk of dying from a complication in a clinic, is this a remedy that will in fact achieve the legislature's health saving purpose? >> justice breyer, self-induced abortion, the in evidence the
record on that were two points of testimony, both from mcallen where petitioners prevailed. as applied challenges could be brought in areas, for instance, if there could be shown substantial obstacle based on travel distance. the four clinics that closed in west texas between el paso and san antonio, all those closed before admitting privileges requirement took effect. they were all planned parenthood facilities and -- >> can i? as applied challenge is a real problem with that because suppose you bring an as applied challenge and you're successful. you can't have a creation of an ambulatory surgical center on the spot. i mean, these -- once these facilities are closed, they're closed and they can't start up tomorrow. so the as applied challenge, the woman's problem would be long over before this clinic -- the
kind of clinic they had before, could be restarted. >> justice ginsburg, the mcallen clinic reopened and as justice kagan mentioned clinics did reopen. the lubbock facility, though, which is one of the facilities in west texas, in petitioner's first lawsuit they told this court in their application that that clinic was going to close regardless. seven of the eight clinics that closed before the admitting privileges requirement took effect and went from 41 to 33, seven of those eight were planned parenthood clinics. planned parenthood is complying with the law and providing that increased standard of care and also the 11 clinics that closed the day the admitting privileges requirement took effect, went from 33 to 22, i don't believe six of those clinics can be deemed to have ceased performing abortions because of that requirement. the lubbock facility was going to close anyway. killeen had admitting privileges -- >> there was a stipulation that is no currently licensed abortion facility meets the asc requirements. each will be prohibited from
performing abortions after the day the law goes into effect. that's a stipulation, not a question of what evidence there was. texas stipulated that no currently licensed facility meets asc requirements. and each will be prohibited from performing abortions. >> and that would go to the asc requirement as opposed to the fascial challenges. but four facilities reopened of those 11 when the admitting privileges requirement went into effect, dallas, two at fort worth, one in austin, two of those were ascs. now, when it comes to the count of ascs, there are nine ascs performing abortion today in texas. three opened up after house bill 2 was passed so in examining the fascial challenge to that requirement, when ascs exist --
>> were they opened as a result of the law or were they planned to be open before the law went into effect? because i think that makes a difference to me. if they were planned to be open -- it takes quite a while to dig up money, get the investors, buy the land, do the building. it seems to me that they must have been planned for a while and if they were it was because there was a need independent of the number of abortions. in other words, it's fortuitous they've come into existence, but their need was not -- was independent of the reduced number of facilities elsewhere. >> the legislature provided by 13 months to come into compliance in addition, you could lease space. texas has over 430 -- there were 433 general ascs in texas -- >> but most don't choose to provide abortion. >> that's correct. of course space could be leased in those. >> so what you don't know is do you have enough resources to
open up an asc if you're going to do abortions? are you going to get enough developers to invest in your work? >> the point being there are going to be at least 10 clinics -- >> can i ask about mcallen? there was testimony in the record that at least four doctors had -- from that spot had asked for admitting privileges. the fifth circuit's remedy only provided by for one doctor, dr. lin, who's past retirement age, to be the only doctor performing abortions in that clinic, now, if the clinic had -- i don't know how many it had but it had at least four people before. it seems rather callous to say as a remedy that we're going to make that one doctor do the work or four or maybe more doctors who didn't get admitting privileges. why is even the fifth circuit's remedy reasonable?
>> because justice sotomayor that was the only named plaintiff for as applied -- >> but that -- yes, as applied, the asc law is effecting affecting this clinic because it can't get its doctors certified. so why duds it require a named plaintiff to relieve that clinic of the on ligation of going without admitting privileges? >> that wasn't the only one of the four doctors that joined this lawsuit because most of the doctors in texas are not part of the -- >> but you just listed the requirements because you know that it's the only clinic in the area. so if any doctor who's licensed appropriately can get admitting privileges they should be permitted to work in that clinic. why does dr. lin have to become an incensured slave to ensure that women in her area are provided with their fundamental right to choose? >> justice sotomayor, it would
not be an indentured situation. if there were new facts that came into being that that doctor -- >> that she wants to leave? >> another doctor could bring in a future as applied challenge. >> general, could i go back to a question -- something you said earlier and tell me if i'm misquoting you. you said that as the law is now under your interpretation of it texas is allowed to set much, much higher medical standards, whether it has to do with personnel or procedures or the facilities themselves. higher medical standards, including much higher medical standards for abortion facilities than facilities that do any other kind of medical work, even much more risky medical work. you said that that was your understanding of the law. am i right? >> correct, and this court's -- >> and i want to know why would texas do that? [ laughter ] >> when there are complications from abortion that's in the record, texas can enact laws to
promote people's safety. >> i know. but the assumption of the question and i think you haven't challenged this assumption is that there are many procedure which is that are much higher risks, colonoscopies, liposucti liposuctions, we could go on and on. and you're saying that's okay, we get to set much higher standards for abortion and i just want to know why that is. >> justice kagan, this bill was passed in the wake of the scandal that prompted texas and many other states to reexamine their abortion regulations. >> but texas's own regulations actually have made abortion facilities such that that can never happen because you have continual inspections. to your credit. so that was really not a problem in texas. having a kind of rogue outfit there. texas has taken actions to pro vent that. so, again, i just sort of am left wondering, given this baseline of regulation that prevents rogue outfits like
that, why it is that texas would make this choice. you say you're allowed to make this choice and we can argue about that. i just want to know why texas would make it. >> i think the amicus brief for the 121 texas legislators that canvases the medical evidence and canvases statements confirms that there were complications, that these laws do have benefits. indeed, even bill opponents -- >> are you -- you're not really contesting that there are greater complications in abortion facile is than they are with a great deal of medical proceed juries that are not subject to the same standard of regulation? >> brain surgery, for instance, just like similar mop louse would almost certainly have higher risk of complication. >> as to rogue facility which is justice kagan just mentioned, one of the amicus briefs sites instance after instance where whole women's facilities have
been sited for really appalling violations when they were inspected. holes in the floor where rats could come in, the lack of any equipment to adequately sterilize instruments. is that not the case? >> stories similar to that are raised in the 121 texas legislators amicus briefs. >> these are not stories, these are, as i understand it, actual reports of inspections of those facilities. >> the amicus briefs discuss that and the complications from whole women's health were underreported to the state. >> texas under the prior law has the right to make random inspections. the problem in pennsylvania was this filthy clinic hadn't listen looked at by anyone from the state in 16 years. but texas can go into any one of these clinics and immediately spot a violation and say you can't operate until you're up to
speed. so texas had had, as justice kagan pointed out, its own mechanism for preventing that kind of thing from happening. >> texas did have existing regulations, but increasing the standard of care is valid, particularly not only in light of -- >> it's valid only if it's taking care of a real problem. >> and abortion complications and underreported -- >> well, no, no, no. a real problem. meaning the governor of pennsylvania said was a regulatory failure and only in that, this clinic had not been inspected for 15 years the doctor was fabricating his reports. that could happen almost in any setting. anyone who intends to break the law is going to break the law, whatever the regulatory rules are. you're going to have doctors, as happened preour laws who were performing abortions without permission in their offices or
without licenses. and i don't want to suggest that we should presume that's going to happen, but it will happen. >> but the constitutional standard for whether a state can make abortions safer can't be that it can only prevent a gosnell situation. there are complications -- >> but you have to see as justice breyer asked you earlier, why are the problems -- isn't this a self-created problem? what happened in texas independent of gosnell that raised a gosnell-like situation in texas that made legislature so concerned after so many years about taking care of this greater risk in abortions as opposed to all the other procedures that are performed in non-asc facilities. >> because there are complications in abortion. >> there is complications in colonoscopies and colonoscopies are, what, 15 times -- 28,
justice breyer just corrected me. [ laughter ] 28% higher? >> legislatures react to topics that are of public concern. in "gonzalez" the court noted after dr. haskell's procedure for partial-birth abortion became more of a nationwide concern, states reacted. when the legislature sees there is a problem and maybe wouldn't rise to the level of a gosnell problem, but the legislature can act to make abortions safer, which is precisely what texas did here. if i can address my friend's contention of the record as to what clinics close preemptively, there is evidence in the record that killeen, mccounsel awan, a paso closed preemptively. killeen did not seek as applied relief. if there are any future concerns, as applied challenges can be raised. for instance, the wide swath of area in west texas does not have an abortion clinic today, there
was no as applied relief sought in this case. if there were -- if it would turn out there were going to be an issue in that area, the future as applied challenge could address that concern. >> that's the problem. once the clinic closes, you said mccowan reopened, but that was very swift. once the clinic closes, the doctors are gone, you can't reinstate it tomorrow. it won't be there. there will be no remedy for that woman who succeeds in the as applied challenge. >> your time has expired. even there, the clinic was not just closed for a single day it was closed for a longer period of time there was an el paso clinic that opened months later. as applied challenge could allow a clinic if an undue burden, substantial obstacle was shown, because of driving distances or capacity in the future in that discreet instance, but in this facial challenge posture, petitioners bear the heavy
burden to show a large -- >> not self-evident in any area that this area of western texas is as big as california, no? bigger? >> i'm not sure about california, but it certainly is a large size. absolutely. >> why isn't it self-evident if you have a law that says you can only be in acs provider and who is going to come in and say i can't be an acs provider, but it is an undue burden on me or undue burden that is self-evident on the women in that area. >> well, the right is possessed by the women, but clinics -- >> exactly so why don't we take this lawsuit as those women saying just that? >> because there was no -- >> can't have a law that has marginal, if any, medical benefit be applied to this procedure anywhere where there is an undue burden on people -- on women. >> planned parenthood had four clinics in west texas. they closed before any part of
hb-2 was put into effect. they could have brought an applied challenge. they didn't. planned parenthood didn't join this lawsuit. part of the first lawsuit and indeed the facial challenges here -- there is significant record gaps. >> may i ask one question. you earlier in your argument you were quoting how many women are within a reasonable range of the clinic. but don't we know from casey that the focus must be on the ones who are burdened, and not the ones who aren't burdened? there is -- in the district court said this is not a problem for women who have a means to travel. that those women will have access to abortion anyway. so in texas or out of texas, so casey was quite precise in this,
talking about husbands and notification, you don't look to all of the women who are getting abortions, you look only to the -- to the women for whom this is a problem. and so the only women we would be looking at is not all of the women who live in austin, or in dallas, but the women who have the problem who don't live near a clinic. isn't that a clear message of casey and the husband notification. >> hwhen a law is regulating women, that might be different, but when we're talking about doctor and clinic regulations, when the law is going to have a relevant effect is going to be for every doctor and every clinic, why the 5th circuit noted that was the proper denominator, petitioners have not challenged that denominator holding in their open -- >> this is about what it is about is that a woman has a fundamental right to make this
choice for herself. that's what we start, that's the starting premise. and then this is certainly about -- casey made that plain, that the focus is on the woman, and it has to be on the segment of women who are affected. >> yes, and the right held by women to make that ultimate decision is not burdened in a minimal large fraction of cases in texas when each metropolitan area will still have a clinic, even after the law goes into effect and future as applied challenges could address any possible concerns about west texas or otherwise. >> thank you, counsel. >> thank you, mr. chief justice. >> miss toti, you have five minutes remaining. >> thank you. a few brief points. first, the record cites from earlier evidence that hb-2 caused clinics to close in texas. the plaintiffs testified that hb-2 caused clinics in killeen, austin, beaumont, mccowan and el paso to close.
and that testimony is at ja 339715722 and 731. respondents stipulated at ja 13 and 184 that the asc requirement would cause any licensed abortion facility still operating on the date it took effect to close. plaintiffs exhibit 28 at page 2, not a joint appendix, but admitted in the report at 2808 and 09 demonstrates for the five years prior to the enactment of hb-2 the number of abortion clinics in texas remained fairly constant. and finally at ja 229 and 1430 there is a 229 testimony from dr. grossman and at 439 our response to the 5th circuit's directive showing 11 clinics closed on the day that the admitting privileges requirement -- >> that's the last evidence was from dr. grossman? >> ja 229 is from dr. grossman.
>> page 232 he said i'm not here offering any opinion on the cause of the decline in the number of abortion facilities. >> that's correct. dr. grossman did not offer an opinion on that, but his testimony supplies the fact from which the district court drew the inference that 11 clinics closed on the day that the state furst enforced the admitting prif privileges requirement. enforcement was the cause of the closure and respondents offered no alternative explanation for why there would be such a precipitous drop in the number of abortions. >> can you tell me why planned parenthood left the western area, the general says the planned parenthood, that asc and admitting privileges have nothing to do with the closures in the western area. >> the two clinics in el paso, which is in that western region of texas, that would be forced to close is a result of these requirements are not operated by
planned parenthood. planned parenthood doesn't have clinics in texas. >> as to the clinics where there is direct evidence, does the direct evidence show whether the cause was the admitting privileges requirement or the acs requirement or both? >> with respect, it does specify and some specify the admitting requirement and some specify both. so with respect to whether abortion can be regulated differently than other medical procedures, abortion can certainly be treated differently if there is a reason to treat it differently. but texas may not impose unnecessary medical regulations that burden women's access to abortion. the court found the regulations of second trimester procedures at issue in that case were consistent with prevailing medical standards at the time, and that was critical to the
court's decision, that is not the case here. there is extensive testimony in the record that these requirements are not medically justified, not consistent with prevailing medical standards, and their amicus briefs from leading medical associations including the ama and acog confirming that. >> do you think that federal district judges were or this court is well qualified to determine whether there is a different risk with respect to abortion as compared to other procedures that may or may not have to be required, may or may not have to be performed in an asc. >> your honor, district courts are quite competent to determine the credibility and the reliability of expert testimony that something that is within the core competence of a trial court and the trial court in this case determined that there was no credible or reliable evidence supporting texas' contentions about the medical
justification for these laws. and further, had texas truly believed that these laws provided some important benefit for outpatient surgery, it would have made them generally applicable. all outpatient surgical providers would have to have admitting privileges or practice in an asc, but that's not the case. texas law expressly authorizes other surgical procedures including those performed under general anesthesia, which early abortion is not, to be performed in a physician's office. and even other physicians that operate at an asc aren't required to have admitting privileges, the facility is required to have a transfer agreement. so these regulations target one of the safest procedures that a parent can have in an outpatient setting for the most own runero regulations. >> the supreme court voted 5-3 today to strike down the texas abortion law in the case we just heard argued before the court.
vox writes this is a huge victory for the pro choice movement and strikes a blow to a strategy by the pro-life movement to limit abortion access incrementally through state laws. the new york times reports the texas law could have reduced the number of abortion clinics in the state to about ten, from what was once a high of roughly 40. justice steven g. breyer wrote the majority opinion joined by justices anthony and kennedy, ruth bader ginsburg, sonia sotomayor and elena kagan. chief justice roberts and clarence thomas and samuel alito jr. dissented. we'll hear the oral argument in that case in a couple of minutes. tonight on the communicators, texas republican congressman will hurd talks
about cyber and data security and federal agencies and the report card his subcommittee released in may on agencies management of information. he's joined by politico cybersecurity reporter tim starks. >> the federal government has almos almost 11,000, facebook has four. there is no reason the federal government should have 11,000 and you can realize savings. we realize through the score card that four agencies have realized $2 billion worth of savings over the last two years by moving into the cloud. >> watch the communicators tonight at 8:00 eastern on c-span2. on july 1st, the sith so smithsonian's air and space museum opened. the american history tv's live coverage starts at 6:00 p.m.
eastern on c-span3. we'll tour the museum and see one of a kind aviation and space artifacts including the spirit of st. louis and the apollo lunar module and live events at the front of the building. learn more about the museum as we talk with the director, the museum curator and valerie neil, chair of the space history department. join the conversation as we're taking your phone calls, e-mails and tweets. the 40th anniversary of the smithsonian air and space museum at 6:00 eastern on c-span3's american history tv. the supreme court unanimously overturned the bribery conviction of former virginia governor robert mcdonnell today. the case now returns to the district court where there are a number of possibilities including a new trial, a plea bargain between mcdonnell and prosecutors, where the case could be dropped. chief justice roberts in his opinion for the court wrote there is no doubt that this case is distasteful, and maybe worse
than that. but our concern is not with tawdry tales of ferraris, rolexes and ball gowns. it is instead with the broader limitations of the government's boundless interpretation of the federal bribery statute. mcdonnell was convicted on 11 down t counts of fraud in 2014. here is the oral argument in the case from april. your argument this morning in case 15474. mcdonnell versus united states. mr. francisco. >> mr. chief justice, and may it please the court. the government argues that in quid pro quo bribery official action encompasses anything within the range of official duties. in order to reach that conclusion, it asks that you disregard the 9-0 decision of this court.
the government is wrong. in order to engage in official action, an official must make a government decision or urge someone else to do so. the line is between access to decisionmakers on the one hand and trying to influence those decisions on the other. >> that is the sun diamond case. >> yes, the 9-0 case. i think what sun diamond confirms is when a official simply refers someone to another official, an independent decisionmaker for an objective decision, he hasn't crossed that line into prohibitive official action. >> i take it all parties concede that the act of the university official could undertake or not to undertake a research study would be an official action. >> yes, your honor. >> and the question is, did the governor cross the line into influencing officials to undertake that action and was the jury properly instructed. >> can you tell me the posture of the case with reference to under virginia law, the government -- the governor's
authority or lack of authority to tell the university you will engage in this research or you will not engage. >> sure. >> what is the state of the parties that agree on this point? >> your hon,er, i think the parties agree that the governor had a bully pulpit authority but very little authority to direct any university researcher to do anything and here i think one of the critical questions -- there are two critical questions. one, was the jury told he even had to find that he tried to do that, and here it wasn't, and, two, did he in fact do that and we would assert he clearly didn't. >> would it have made a difference if the medical faculties had agreed to the testing? >> your honor, if they had agreed to the testing, i still don't think it would have made a difference in terms of whether governor mcdonnell tried to influence their decision on that because he didn't. and it still wouldn't have made a difference on the jury instructions because the jury still wasn't instructed that it
had to find the governor mcdonnell tried to influence a particular governor decision because it wasn't so instructed. >> mr. francisco, could i ask the line you're drawing between exercise and influence, and providing access, just to sort of test that with the hypothetical, suppose that somebody knew that there was a contractor who was going to award a very large contract, to one of two or three firms that he was meeting with. and a company paid to make sure that they were on the meet list, to be one of those two or three firms. in other words, bribed an official in order to become one of those two or three firms from which that was the pool from which this billion dollar contract would emerge. would that be sufficient? >> your honor, i think that that probably would be official action, because there the only way you can even get a decision in your favor is by being one of the three people on that list. so being on that list is a
requisite to getting a decision, being denied on that list is a denial of the decision. and that's an official governmental action. here, the jury wasn't instructed on any of this, they didn't have to find that governor mcdonnell tried to influence anything. indeed it would have been required to convict under these instructions if governor mcdonnell called up a staff member and said i would like you to meet with this fellow johnny williams, don't trust him, his product is a little hingy, but you're the expert so meet with the guy and exercise your complete and unfettered independent judgment. >> go ahead. >> let me just change the hypothetical a little bit. suppose that a governor is going to make a decision -- eventually going to make a decision that will help either a or b and hurt either a or b and the governor says, you know, i'll have a preliminary discussion about this with members of my staff, we're not going to come to any decision, but we're going to talk about it. and whichever of you pays the most money will be able to sit in on this staff meeting.
what about that? >> sure. well, your honor, i think i would want to know are there facts suggesting it really isn't just a payment to sit in on the staff meeting, it is a payment to try to influence the meeting. >> i think it would violate a whole lot of other laws, but i don't think unless there was any kind of indicia that you were trying to influence the outcome you would cross that line into prohibited official act corruption. after all, these laws are not meant to be comprehensive codes of ethical conduct as this court said in sun diamond. they're meant to target the worst form of ethical misconduct, the corruption of official decision-making. and if -- >> not just sitting in, man i wasn't -- i should sharpen this. the party is allowed to speak and present its point of view. >> your honor, again, the more facts that you put on to suggest that it is more of an attempt to influence a decision, it is not just a meeting, i think the more likely you are to get to that official act. >> so tell me what do we do with
the evidence in the case that the university individuals who were assessing whether or not to do these studies themselves felt pressured. there is both testimony and documents in which the pros and cons of accepting these studies was discussed, and in the pro and con, it was the governor really wants us to do this. the governor is pressuring us to do this. we just don't think it is a good idea that they were honorable people, obviously, but the point is, what do we do with the fact that they perceived that he was trying to influence them. >> i have two responses, your honor, a legal one and a factual one. legally you still need to instruct the jury that it had to find that governor mcdonnell tried to actually influence a government decision. and here it wasn't instructed.
so could have completely agreed -- >> but why? isn't this -- i thought this crime was taking money knowing that it was being paid to influence an official act. so aren't all of these examples of official acts, whether they are or aren't relevant, the question is what was his intent that the moment he took the money. and why couldn't the jury infer at that moment that he took it with the intent to commit an official act, the way mr. williams wanted it committed. >> so, again, your honor, two responses. even assuming that the jury could have inferred it, you still need to tell them what an official act is. that an official act is an attempt to influence an actual governmental decision. >> well -- >> and to study the dietary supplements. >> to actually, you know, conduct, tobacco commission funded state studies. but you still need to tell them
what that is. i'll get directly to your question, why is it that the actual official acts are relevant? and that's because both the district court and the court of appeals opinion made clears here in this case, the corrupt agreement turned entirely upon us, the district court case said it hinged upon whether the five specific acts were in fact official acts. because in the absence of any direct evidence of a corrupt agreement, the government's argument was you could infer one from the pattern of official acts on the one hand and the pattern of gifts and loans on the others and the temporal connection between the two. >> is it your position that page 60 of the supplemental joint appendix, the instructions aren't numbered, which makes it hard. but the judge instructs the jury that official actions are set forth in the five paradprgraphs the indictment. and is it your position that at least some of those are not official acts. >> all right, yes, your honor,
and certainly the five things that were proved in this case are not official acts and likewise i don't think any of those things as they actually came into evidence demonstrated official acts because in none of them did government cross that line and try to influence the outcome of any particular decision and just as critically, the jury was never told it had to find that. the jury in this case could have completely agreed with our version of the facts. it could have agreed that as we argued very vigorously that the most that governor mcdonnell did here was refer -- >> well, this gets back from what justify justice alito's -- how close the meeting came to be in an official act. but i take it at some point your position is that a governmental -- that an official act must be to exercise of governmental power. is that your position?
>> it is either making a decision on an exercise of governmental power, trying to influence it, as in the birdsol case where the defendants were trying to persuade the grant of clemency. if you're setting up a meeting so that somebody can appeal to the independent judgment of an independent decisionmaker and not trying to put your thumb on the scale of the outcome of that meeting, that simple referral can't possibly be official action. after all, government officials refer friends and benefactors to staff members all the time in order to avoid taking official action. >> do you concede that there is sufficient evidence in this record, that says we accept your argument about the charge being insufficient, but this could go back and a jury could be asked did the governor try to influence a decision on the part of the medical faculties? >> your hon eor we don't conced there was official evidence.
justice sotomayor, goes foint yto the point you were making, you don't assume all the evidence in favor of the government. the question becomes could a -- would a properly instructed juror be required to convict? here, even if the jury completely agreed with us and very well may have under these erroneous instructions, they still would have been required to convict because under these instructions simply referring somebody to a meeting without trying to influence the outcome of that meeting constitutes official governmental action. >> i suppose arounding ingarrang could be official government action. not just a secretary, but your job was to manage the governor's schedule, you decided who met with him, you decided when, and that is your job. that's -- anything that individual does i suppose would be an official act. >> i think that's possible, chief justice. of course, in this case, we don't have anything like that. we simply have refers to meetings with other officials so
that at best the alleged bribe payer here, johnny williams, can try to persuade them to his cause. >> can i follow up on that. what you just settiuggested, th scheduler was selling meetings, so you would think that that's part of her job and if i just understood you correctly, that falls within the statute. >> your honor, i think that would be a very close case. that would be a very close case, because at the end of the day, if you're not actually making a governmental decision or influencing the outcome of an actual governmental decision, i think chief justice, you might be violating a lot of other laws. which prohibits you from taking anything from anyone who whose interest could be affected by the performance or nonperformance of your duties.
the line has to be and the only line that comes out through the cases is you're making a decision on behalf of government or you're urging someone else to do so, you're trying to push them -- >> when you say urging, now i can go back to a lot of different commission, the brown commission, the senate s-1, the language of the statute. and i read official action, something quite similar to the statute here. a decision opinion, recommendation, judgment, vote or other conduct, perhaps other similar conduct, involving an exercise of discretion. so in this case, the official action we're talking about is giving money to a group of people in the university to conduct a study. the governor didn't do that. but a person who tries to influence an official action and is also in the government is also guilty.
but, wait, that's the indian case. >> yes. >> but wait, the word influence is too broad because every day of the week politicians write on behalf of constituents letters to different parts of the government saying will you please look at the case of mrs. so and so who was evicted last week. and that's so common, it can't pick that up. then you use the word urge, that's not exactly a legal word. what i'm looking for is a set of words that will describe in both sides' positions what we should write as the words that describe the criminal activity involved in talking to or influencing the person who does create the official act like give a pardon,
like award a contract, like vote, like et cetera. those are the words that i can't find and i would appreciate your opinion. >> sure, your honor. i think the answer is that what district courts have to do is understand the general rule, i think at some level has to be an attempt to influence and then flush it out in a way that is appropriate to the facts of the case. >> my goodness, letters go by the dozens over to the secretary of hud, to the secretary of hhs, to the secretary of the assistant secretaries and they say my constituent smith has a matter before you that has been pending for 18 months. we would appreciate it if you would review that and take action. and then elected official says it smith, i did my best on this. and smith thinks good, he's used his influence. a crime. my goodness. >> absolutely not, your honor.
absolutely not. >> you say absolutely not. that's what i thought you would say. i want to know the words you used were an attempt to influence. and so those -- i don't think that's the right word. and i want to know what the right words are. >> sure. >> in the instruction that the judge is going to give, not in your case, but in general. >> well, can i give you an example from another case that although i do think instructions are generally tailored to the case an -- >> of course they are. but you have to have the standard that will distinguish the urger from the one who does it criminally and the one who doesn't. >> and in the ring case, i thought that judge had some very useful instructions. where she wrote and this is at page 1083 of the joint appendix, therefore, official action includes the exercise of both formal official influence, such as the legislature's vote on legislation and informal
official influence such as the legislature behind the scene influence on other public officials in the legislative or executive branch. >> there we have it. there we have it. all these letters going over, saying please look at mrs. smith's eviction notice. and mrs. smith, who, by the way, took me to lunch last week. >> and i completely agree, your honor, which is why in our proposed instruction -- >> that won't do it. what you read won't do it. >> that's why i think it needs to be tailored further to the facts of the case. in our case, we went on to say merely arranging a meeting, attending an event hosting a reception or making a speech or not standing alone official acts -- >> so you use that, the key to the word in there is merely. >> yes, your honor. >> sometimes it could. >> yes, your honer. >> somebody might have the embarrassing question merely when it can or merely when it can't. give me a little enlightenment. >> i think the answer is if the evidence shows there was -- i hate to go back to the word that
i know you don't like here, but if the evidence shows that there really wasn't an attempt to try to push the separate decisionmaker that you're supposedly trying to influence one way or another, but you really are just sending it over for a meeting, and that independent decisionmaker is left to their independent judgment, you haven't crossed that line. >> where did justice breyer is concerned about comes from birdsal, with intent to influence their official action, so we can hardly fault in the district judge for using the same words that this court used. >> i agree, your honor. i thought the judge did a good attempted at defining, she wept further than that i read to you. she continues along the lines that we prosed in our instructions that, quote, mere favoritism as evidenced by a public official's willingness to take a telephone call or meet with a lobbyist is not an
official act. i think that the idea is, i understand justice breyer influence itself doesn't solve the problem, but what district court judges do is they then explain to the jury what they mean by influence. >> where can we find the best definition in your view of an official act? >> your honor, i think best definition of an official act is essentially the one that i tried to articulate at the outset. you need to either make a decision on behalf of the government or try in some way to use your influence to pressure or urge or persuade or cajole someone else who has governmental power to make a decision on -- >> i just don't see the limiting principle in the second part. >> your honor, i think in many -- in some cases the limiting principle might be difficult. it is not aperfect and precise formulation. i think in this case it is a particularly easy principle because here the jury wasn't given any instruction on the line at all, so justice breyer
in your hypothetical, sending that letter over is an official act under the instructions as given and under the theory pushed by the solicitor general's office in this case. it is -- >> i'm not sure that's right. seems to me the official act is exercise of governmental power to require citizens to do or not to do something or to shape the law that governs their conduct. >> i agree with you. >> in your view -- >> the hypotheticals have been thrown around. the janitor who gets the bottle of beer in order to clean your classroom first, is that a governmental act? >> certainly not in my view. the government -- >> what is the difference? >> the difference is one that -- one is you're exercising power on behalf of the government as a hole. the janitor, if he's using government money to buy janitorial supplies and engaging in government contracting, that's an exercise of governmental power. if you're simply cleaning out a
classroom, i don't think you're exercising government power. when you send somebody to another official, for an independent and objective decision by that official but don't try to put your thumb on the scales of that decision, you haven't crossed the line. i think it is very important in a criminal statute like this, because if you do think that a referral just simply making a referral is official action that crosses the line at bribery, i think you have serious vagueness concerns with the hobs act and -- >> i'm sure it depends on who is making the referral, the call, right, and justice breyer's hypothetical if it is a congress person, calling somebody and saying could you look into this matter for my constituent, the person should look at it, i suppose, and then that's one thing. if it is the president who calls, and says i want you to look at this matter for my constituent, that might exercise considerly more influence. >> two things. you still need to tell the jury that that's what they have to find. and here the jury was never told in any way, shape or form that they had to find an attempt to influence. so i think that is sufficient in
and of itself to the very least require a new trial here. under these instructions, as the government itself seems to agree, any action within the range of official duties constitutes official governmental action. justice kennedy in the letter being sent over from a senator since that is within the range of official duties, that counts under the government's formulation and under the jury instruction that is given since it is after all a subtle practice of officials to send those kinds of letters. that's why it was incumbent upon the district court to draw some kind of limit. and here the jury could well have agreed with us that even though he was the governor of the state, mr. chief justice, he did not try to influence the actual decision, he simply made the same type of referral he made day in and day out during this administration where he simply sent a constituent to the appropriate official -- >> you said something before, and might have misunderstood you, but do you think of the five listed official acts, do you think that none of them meet
the standards that you're suggesting or do you think some of them do and some of them don't? >> two answers. first of all, we don't think any of them meet the standard. >> go ahead. >> secondly, the jury certainly could have agreed with us on that given the evidence that we put forward and therefore erroneous instruction was critical to this case because even if they had agreed with us, they would have been required to convict under that erroneous instruction since take the -- they could have concluded that that was an official act and that was the only basis to convict and could have agreed with our evidence on everything -- >> that might be right. might be that you still have a winning argument even if some of the five are fine. but if we could just focus on them for a bit. i mean, for example, the third one -- >> page 60. >> 6091, contacting other government officials to encourage virginia state research universities to initiate clinical studies.
so that's the one that seems to me to really fall within your own definition, do you disagree with that? >> your honor, i don't. if they had proved what was said in the indictment in the case, i think we would be making a different argument here. the problem is they didn't prove the governor mcdonnell tried to encourage anyone. >> your argument is a sufficiency argument. >> yes. >> rather than this was -- this is not an official act. >> yes, your honor. to be clear, we have two separate arguments here. one on the jury instructions, where our argument is that even if they agreed with all of our view of the facts, they still would have been required to convict given the erroneous jury instructions and secondly our second argument is the sufficiency argument, even if properly instructed jury in our view could not have concluded that -- >> just to be clear, you said at the outset you don't think any of these are official. then i thought i heard you say that third contacting other government officials is part of an effort to encourage state
research is not -- >> that's the indictment, your honor. if they had actually proved what was -- >> justice kagan asking, is that an official act? >> if they approved that he had tried to encourage them to do that, that would have been an official act. our argument is first the jury was never properly strucked on that question and second, he never did in fact urge university researchers to do anything. and if i could just conclude before reserving the remainder of my time for rebuttal, at the one event where he actually had direct contact with university researchers, justice kagan, this was the luncheon held at the mansion, all the witnesses -- who were there testified to two things with respect to the governor. first, he asked mutual questions that didn't try to push the researchers decisions one way or another. and secondly, the one time johnny williams asked him for something support before tobacco commission funding he gave johnny williams a very polite no. mr. chief justice, if i could reserve my time. >> thank you, counsel.
mr. dreeben. >> thank you, mr. chief justice and may it please the court, petitioner seeks a categorical carve out from the concept of an official act for things like meetings, phone calls, events, that in his view do not further or advance or attempt to influence a particular government action but simply provide somebody with access to the government. >> he's not -- he's not the only one. there is an extraordinary document in this case, that's the amemo amicus brief filed byr white house counsel to president clinton, former white house counsel to president george h.w. bush, former white house counsel to president reagan. and they say, quoting their brief, if this decision is upheld, it will cripple the ability of elected officials to fulfill their role in our representative democracy. i think it is extraordinary that those people agree on anything.
but to agree on something as sensitive as this and to be willing to put their names on something that says this cannot be prosecuted conduct, i think it is extraordinary. >> it may be extraordinary, mr. chief justice, but that doesn't make it correct. i think it rests on several fundamental misconceptions about what government actually does. i think it is important to pause and look at the impolitic the i that people can pay for access, they can be charged to have a meeting or have a direction made to another governmental official, to take the meeting. it would mean in effect that if somebody came to me and said, you know, i know you're having a lot of college tuition issues, we can help you with that, the criminal division is not giving us a meeting on whether to appeal a case. just call them and see if you can get them to take the meeting. >> it is somebody in the
government whose client comes to -- we really like the solicitor general's office to file a brief in our case and then that person calls you up and said can you meet with so and so, all he wants to do is sit down with you and persuade you, why you should file a brief, supporting his case. >> getting in the door, mr. chief justice, is one of the absolutely critical -- >> is your answer yes, that's a felony? >> if somebody pays me -- >> that's the quid side of it. i'm talking about the quo side. >> taking a meeting, yes. i think taking a meeting is absolutely -- >> so if the president gives special access to high dollar donors, to have meetings with government officials, that is a felony? >> certainly not justice kennedy. >> why certainly not? >> the critical issue there is whether the government can prove a quid pro quo and now we're moving into the realm of campaign contributions, where this court has given very strict
guidance about when a jury -- >> it is not a campaign contribution. what it is, he takes them to lunch and an expensive lunch at that. okay. because the quid side is not limited. the government argued continuously that in for a penny, in for a pound, okay? so we don't have the limitation on the quid side. we have a possible limitation and frame of mind and now we're looking to the quo side. and you are to remove any limitation there. okay? now, why do i think that's a problem? two very fundamental reasons. and it is not because i'm in favor of dishonest behavior. i'm against it. and where you just listed some that is dishonest. my problem is the criminal law as the weapon to cure it. and if the criminal law is the weapon that goes as far as you want, there are two serious problems. one, 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 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. suddenly to give that kind of power to a criminal prosecutor who is virtually uncontrollable is dangerous in the separation of powers since, so in my mind writing this se, nothing to do with this petitioner, nothing to do with him, but in this case as
fundamental, a real separation of powers problem as i've seen. and i'm not quite certain what the words are. there won't be perfect. they will leave some dishonest conduct unprosecuted. they won't be perfect. they will put some politicians at risk. but i'm searching for those words because as i said, this is a very basic separation of powers problem for me. >> so -- >> i appreciate your help on what the right words are and i'll tell you right now, if those words are going to say when a person has lunch, and then writes over to the antitrust division and says i would like you to meet with my constituent who has just been evicted from her house, you know, if that's going to criminalize that behavior i'm not buying into that. i don't think. so i want some words that will help with what i see as is naughty and complicated and
difficult and basic a problem as i can think of. >> justice breyer, let me first argue the position that i came here to argue which is that official action is not limited by some arbitrary litmus test to that -- that was proposed by petitioner that would exclude things that he calls access. i don't think that that's the right way to look at it. i think the right way to look at this statute is to recognize that it has multiple elements, we're talk ing about multiple statutes, but the bribery offense has very similar elements. you first have to decide whether someone is engaging in an official act. merely going to lunch is not engaming in an official act. there are opportunities to -- >> no one said it is. the lunch with the chateau lafitte wine happens to be the quid. and that's worth a thousand dollars or 500 anyway. i don't go to those restaurants. but you understand. the other side of the equation i'm --
>> i understand, justice breyer. would it be helpful for the court if i could lay out the other elements. official act does not have to do all the work. you to have somebody engaged in the official capacity. you have to have something they do within their range of official duties, going to lunch is not going to be. third, you need a quid pro quo, which means the government is going to have to show the person alou ee ee ee eed themselves to influenced. somebody is basically saying i'm going to make a referral over to another agency for you only if you buy me lunch. that is not honorable behavior. and there are many regulations that carve out permissible gift situations and create the fourth element issue that i think is an important protection, which is mens rea. >> as you set forth in your brief correctly, you can imply an agreement over time. you can imply a contract over time. and if the lunch takes place
first, and there is no precondition on the lunch, but after the lunch, there is, wink, wink, nod, nod, and contact takes place, it is clear in the standard criminal law that there is a conspiracy there. >> so i agree with you, i do agree with you, justice kennedy, that's the position that your honor's opinion in evans, the separate concurrence explained as a proper way of administrating the quid pro quo requirement. there is a very critical protection here. requirement of showing something beyond a reasonable doubt to a jury. and if you have ordinary conduct fully disclosed in accordance with regulations which do strictly limit when people can receive free -- >> i don't see what the relevance of the regulations is. you say there are certain safe harbors created by federal regulations, those supply to federal employees and offices, what do they have to do with the governor of the state or the
state employee? >> they don't. this case has been litigated on the submission that section 201 informed the meeting of official action for purposes of a hobs act and services statute. as a result, the parties have engaged very heavily on the effect of federal officials. i think justice breyer's question was directed at them. i do think there are different issues that arise with respect to state officials, but the mens rea requirements that i've been talking about are going to be fully applicable. >> this doesn't answer justice breyer's basic question and ours. you're going to tell the senators the officials with -- don't worry, the jury has could be convicted beyond a reasonable doubt and that's tough. that was your answer. that was your answer. >> justice kennedy, i do think that the requirements of the criminal law in proving something beyond a reasonable doubt are a substantial -- >> what is it they're going to prove? of course, this is a state case.
not a federal case. state officials, federal law, but a state official. i don't know. only peripherally involved in political campaigns. but my peripheral -- convinces me that their candidate will go out and he'll have lunch with hundreds of people. hundreds. everybody who wants to give him lunch, great. and he wants to meet as many people as possible. he wants to be friendly. he might receive a raincoat, he might receive all kinds of things and at some point it becomes very dishonest. so but that's a matter for campaign laws. wait. now, i've also been involved in the justice department. and we would receive many, many letters in the antitrust division. have you looked into such and such. i know perfectly well that that senator just wants to go back to the constituent and say, see, i did my best. that's all. now, you're saying to the jury, take those facts i just gave
you, and you look into the state of mind, the state of mind of which the amounts being given will be somewhat indicative of which the nature of the letter will be somewhat indicative of whether he writes in personal writing at the bottom, will be somewhat indicative and we're going to let you 12 people work out what was really in that senator's mind, i say that is a recipe for giving the department of justice and the prosecutors enormous power over elected officials. who are not necessarily behaving honestly. and i am looking for the line. i am looking for the line that will control the shift of power that i fear without allowing too much honesty through this law, you know, other laws exist, on the other side. there is that -- that's what i want your view on. >>breyer, i'm
going to push back because i think the line the petitioner has urged is one that is a recipe for corruption. not a recipe for drawing a safe harbor for public officials. what he has basically urged the court to hold is that paying for access if somebody does not put a thumb on the scale of decision, if i, for example, tell the criminal division take the meeting, make whatever recommendation is in your best judgment, just take the meeting, i can take money for that. and i think the message sent if this court put its -- on a scheme of government in which public officials were not committing bribery, when all they did was arrange meetings with other governmental officials, without putting in his met forrical way, a thumb on the scales of the ultimate decision would send a terrible message to citizens. >> what i think we're looking for is some limiting principle. you started to say something about campaign contributions and i know this case does not involve campaign contribution, but surely a campaign contribution can be a quid, can it not?
>> certainly. >> gaining access by making campaign contributions is an everyday occurrence. and maybe it is a bad thing. but it is very widespread. how does that play out? >> justice alito, gaining access and gratitude as a result of campaign contributions is not a crime when it is done as a quid pro quo it is. and that's not -- >> that's what i want -- >> if i could follow up on that. if a senator writes to a federal agency and says this union or this company is, you know, critical to the economy of my state, and, by the way, he doesn't say this, but by the way, they are the biggest contributors to his campaign, would you please meet with them, and what would not make that a crime, the fact that the jury might not find beyond a reasonable doubt that the reason why he was urging this meeting
was because these people -- this entity happened to be a very big supporter. that would be the only thing separating lawful from unlawful conduct. >> let me say two things in response to that. first, this court has addressed that very issue in the mccormick case. and it is established that taking favorable action at or around the time of the time of campaign contributions is not sufficient to show a quid pro quo and is not a crime. nobody doubts if there is a quid pro quo for a vote, something that i think mr. francisco is prepared to concede as official action though i'm not sure why since it doesn't personally exercise sovereign power, if a legislator casts a vote as a dissenting vote from majority action, but nobody disputes that that is a crime. this court has already carved out evidentiaries and instructional safeguards that prevent against a jury and inferring a quid pro quo from the coincidence of timing. i want to come back to something that is more fundamental and that is the role of the first amendment in this is case.
petitioner sought to wrap himself in the mantle of the first amendment probably because the gifts that he received have nothing to do with the first amendment, they have to do with personal loans and luxury goods, this is not a case about campaign contributions. but when campaign contributions are at issue, he relies on citizens united, while ignoring a critical piece of citizens united. this court in citizens united looked back to the circumstances that prompted the federal election campaign act in 1972. and those involved circumstances that were delineated in the buckley decision in the court of appeals. and the court specifically cited to those practices and what were those practices? they involved the american milk producers paying $2 million in campaign contributions, spread out among a variety of committees, to get a meeting at the white house. that's all they did. they said in order to gain a meeting with white house officials on price supports, they paid that money. other corporate executives
testified that paying money was a calling card, something that would get us in the door and make our point of view heard. and this court said on page 356 of the citizens united opinion, the practices buckley noted would be covered by the bribery laws, ceg, if a quid pro quo arrangement were proved. now, of course, it is very difficult to prove a quid pro quo arrangement and that's why there are campaign finance limitations on contributions to candidates. but the court had no doubt that paying for access was a criminal violation. and so -- >> so if you have a governor whose priority is jobs for his state, and there is a ceo who is thinking about locating a plant in his state, and you can only do what he says if gets tax credits from the state, so the governor is talking to him and he says, look, why don't you come down to my, you know, trout stream and we'll go fishing and we'll talk about this. and the governor does that. he has a nice day planned,
fishing for trout and they talk about whether they can get tax credits, deferred taxes if the ceo opens his plant in the state. now, is that a felony? he's accepted an afternoon of trout fishing and he discussed official business at that time. >> i don't think so, mr. chief justice, but if you change the hypothetical instead of an afternoon of trout fishing i'll fly you out to hawaii, and you and your family can have a vacation and during that time we can go over my policy -- >> but i thought -- i didn't think the government put any weight on the amount of the quid. in other words, you know, okay, i don't know how much an afternoon of trout fishing is worth, but i gather you can be charged for that and pay for it. i thought that didn't matter. i thought it was whether he was engaged in an official act under circumstances in which a jury could find he did it because of the gift. >> yes. >> and so if all he's doing is talking about ways to get jobs
for virginia and talking with the person who is going to make that decision from the private sector, based in part on whether or not he gets, you know, tax credits, it would seem to me that under your definition that governor is guilty of a felony. >> i'm not sure he is guilty of a felony, but the reason why i change the hypothetical to involve a larger quid is because the implications of carving something out from official action means that it can be sold and that it is lawful to be sold. and when you change the trout fishing to a trip to hawaii, it becomes more nefarious and message it sends -- >> that's the point. you see, what exactly what the chief justice asked. what is the lower limit in the government's opinion on the quid? what? tell me right now -- if you're going to say $10,000, okay. i feel quite differently about this. if you say an afternoon of trout fishing or et cetera, i feel quite differently, hard to see
the conduct being honest if you exempt the campaign contributions and put it up somewhere. but i didn't think that was the government's position. what is the government's position? you tell me i'm wrong in for a penny in for a pound. you tell me right now it is not the government's position that trout fishing afternoon is sufficient to be a quid. if you say that, i'll feel differently about the case. >> it is tempting, justice breyer, but i'm not going to exempt from the corruption laws certain types of quids, but you do need to run this through all of the almosts of the offense. i think what petitioner is saying and some of the court's hypotheticals are suggesting the only thing that really you could possibly do to remedy this issue is to shrink the definition of official action with no basis in 201, nor really i think any common sense basis in the way that government -- >> you tell me, that's why i asked you at the beginning, and
you -- and you ordered to be -- you say you're going to push back and then complained about their definition. if i thought there definition was so perfect, i wouldn't have asked you. and it is exactly -- i wouldn't asked you. it's exactly you tell me how to do this. i'm not you say it sends a terrible message. i'm not in the business of sending messages in cases like this. i'm in the business of trying to figure out the structure of the government and that's part of separation of powers and i express my concern. i dissented in citizens united so whatever that said there. the point is the one i raised at the beginning that every single one of us has raised. we're worried. because like any other organization, the prosecutors too can be overly zealous. that can happen. we need some protection on both sides even though the line won't
be perfect. it will fail to cap some crooks. i understand that. i want to know your view. it doesn't even -- it helps a little. not a lot to say meetings. that's too specific. i want to know what you view is to the lack we write in discussing the line. >> i don't think you and i agree where the line should be, justice breyer. so i can't write language that is going to satisfy you. you weren't even satisfied with petitioner's language which requires influence on some other governmental. you said that was too broad. >> no, well -- >> been suggested. i think it's too narrow. i think if the court is going to reject the government's suggestion which is that when the governor calls his secretary of health and says take the meeting with my benefactor. take the meeting so that person
can have the opportunity the others will have. i think that is official action. petitioner says it's not official action unless he further sends the message, which i think on the facts of this case was sent, he's trying to influence the ultimate outcome. if the court is going to reject the government's position in this case, then i think a fallback position for the government is when you have an undisputed official action such as will the p universities of virginia study a particular product or will the tobacco commission fund it. then when a public official takes action to direct that decision, to influence that decision or to advance his benefactor's interest with respect to that decision, that constitutes the crime of bribery. >> there is given the difficulty that we're having in settling on what these words in the statute mean, there is an argument in the petitioner's brief that you
have responded to in yours that the statute is vague. >> i do not think it's unconstitutionally vague. we're talking about multiple statutes. we're talking about extortion which this court has construed in mccormick and evans. will be controlled by a thing of value that he has received. now we're talking about the question of what constitutes official action for purposes of a common law crime that goes back centuries and was incorporated into the hobs act. we're also talking about the statute. this court in instilling just six years ago. >> could be construed. what, three votes to find it unconstitutional and the others say, well, no, because you can narrow it in this way to the core definition of bribery. maybe the experience we had here and the difficulty of coming up
with clear enough instructions suggest that the caution the court showed at that point was ill advised. >> i think it will be stun fg this court said that bribery and corruption laws which have been on the books since the beginning of this nation and have consistently enacted by congress to combat both federal state and. >> would it be stunning to say the government has given us to workable standard. >> we have given a standard. in 1914 decision where the court said that things that government officials do under a bribery statute much like this are covered as official action and they're not limited to things that. >> well, perhaps what you're talking about is how evil the conspiracy is. it's not evil to fish or to have a bottle of wine, but it is evil physical you up the anti. is that what you're saying. >> i think what i'm trying to say justice kennedy is it's going to be extremely difficult
for anyone to believe you can buy a governor's position on a tax support for an afternoon of trout fishing. that's why those cases don't get brought. no one thinks about them. it's not even clear there is a quid pro quo. >> can i ask you a narrow question. one of the official acts here, i'll just read it to you, it's allowing johnny williams to invite to star scientific's business to exclusive events at the governor's mansion. that's essentially hosting a party and allowing him to invite some people. why does that, why is that an official act in your view. >> it wasn't hosting an official party. we're talking of two events. one was a product launch after the goempb's mansion where he's giving credibility to a brand new product and the invitations were critical to johnny williams' plan to sign up the universities to do the studies. >> i guess my question is this,
the official act, the statute, the definition, requireses that there be some particular cause suit proceeding or controversy, correct. >> yes. >> if i understands the theory of this case, the matter suit proceeding cause or strooefs here is the attempt to get the university of virginia to do clinical studies of this product, is that correct? >> it's narrower than our full scope of the charge, but essentially correct. >> that's the gaft of it. >> yes. >> if the indictment and then the instructions that were based on the indictment had said the official act is getting the university of virginia to do clinical studies, right, that reads very differently from the way this indictment was structured because what this indictment does is it takes a
lot of pieces of evidence that might relate to that official act and charges them as official acts themselves so that the party becomes an official act or calling somebody just to talk about the product becomes an official act. you see what i mean? this might have been perfectly chargeable and instructable, but i guess i'm troubled by these particular charges and instructions, which seems to make every piece of evidence that you had an official act rather than just saying the official act was the -- was the attempt to get the university of virginia to do something that they wouldn't have done otherwise. >> so justice, what the prime was here was the goempb accepting things of value in return for being influenced and taking official actions to litigate immunize, promote and secure research studies for
products. that's a supplemental ja 14. it then alleges he would do this as opportunities arose in the course of his official actions and because he's the governor and he has a tremendous amount of influence through the government, he appoints all the board of visitors of vcu. he sets the budget. they know he's an important guy. he has lots of opportunities to do this in different ways over time. if you look at the pattern of what he did, directing people to meet with stars representatives. arraigning events at the mansion so stars could bring its chosen guest list so the doctors they wanted to influence with the star people who were trying to influence it. the goemvernor is taking every step he can do. so i think that if you look at the indictment the way that it's actually structured, it talks about a person who as
opportunities arose was going to engage in official acts. this is a theory of corruption that justice sotomeyer. and therefore the individual official act really formed a composite window into petitioner's mind. did he intend to allow his official conduct to be controlled by the things of value that he received. and taking them altogether, even if the court has trouble with any individual one, they allowed a rational jury to infer that indeed he did and the only way that petitioner could win if you agree with me on the sufficiency issue is if you conclude that jury instructions must exempt certain types of action. which is a very significant event in the life of a cabinet member and a governor. or hosting an event at the mansion can't possibly count because it somehow should be
viewed as social when in fact what the governor is doing is allowing his benefactor to get all the people in the room who he wants to influence to do the studies: so in my view there was nothing wrong if i could complete the sentence in the way the indictment structured the crime in this case. the official acts were exempt loir. they were proved and the jury could properly find them. >> thank you, counsel. mr. francisco, five minutes remaining. >> i have three points i would like to make. first the problems are solved by the requirement. the gratuity statute has the exact same official act requirement, but no quid proquo requirement at all. if you take somebody to a fancy lunch with i can't remember the name of the bottle of wine you mentioned, justice breyer, but you took them to that fancy lunch to thank them for referring you to a meeting with a midlevel staffer even if there
was no suggestion at all other than take a meeting and hear him out and exercise your independent judgment, that would be a vulgs of the federal gratuity statute. counts that means that if you took the person out to that lunch as thanks for give i don't go a tour of the capitol building you would have violated the statute. point two, justice breyer -- >> there is a difference between someone saying thank you for a decision you made independent of the gift. that's the growers case. and someone buying you an expensive lunch and saying i'm paying for this lunch, but make sure i get a tour. you don't see the difference. >> not under the federal gratuity statute because it's meant to prohibit thanking somebody for giving you an
official act. so if an official act is in fact a tour of the capitol building or a meeting with the staffer, you have in fact violated the federal gratuity statute when you take them to lunch as a thanks for that particular act. second point trying to figure out the right verbal formulation. if we can't figure out a proper formulation, then i think there are very sooers vagueness problems. >> it's birds all. i red the browns commissioner report, i read the penal code. i looked at the present statute. i think i can limit that because the statute its seems to cover things like voting and contracts et cetera, but it's also true that a person who tries to influence those things has committed bribery. i think that's correct. now my problem is with birds all and how do we write those words so that they do catch people who
are doing this dishonest thing without, as i've said five times, allowing the government the freedom to go and do these ridiculous cases. >> i think the dc circuits and bank decision. >> not saying this one is a ridiculous one by the way. >> understood, your honor. >> i think the right answer you start out with the dc circuit decision in valdez. you look at the listing of words. question, matter, suit, cause, proceeding. those are actual decisions the government makes. the government as a whole as a sovereign. then you say are you making a decision on that if you're the final decision maker. or if you're not the final decision maker, but because of your power you have the ability and authority to influence other decision makers, then are you doing that. >> mr. degree ban's arguments that if we reed a statute as you are urging, then every government official can say you want to have a meeting, pay me a
$1,000. the corruption that's inherent in the position that says it's okay to facility all meeting. it's okay to say i'll do it for you if you pay me $1,000. that's your view that that would be okay. >> your honor, frankly this was leading to my third point which is if there's absolutely no way that -- if there's no way you're trying to influence the outcome and it really is just a meeting, yes, but that reflects the fact that the broad and vague statute rs not comprehensive codes of ethical conduct. there are lots of other statutes that would prohibit what you're suggesting and you. >> that hasn't happened in quite some time. >> i am very, very sorry. justice ginsburg, my apologies. there are a lot of other statutes that would prohibit that conduct.
>> what would pll africtake theg a business and he's taking $5,000 at a pop every time he arraigns a meeting with the criminal division for somebody. >> sure, there's a statute that prohibits supplementing your public salary with private money so if you're essentially taking outside money for the performance of you were official duties, that's illegal. that was discussed in the sun diamond case. there's another statute that prohibits you from doing any taking anything from anybody who is interest could be substantially affected by the performance or nonperformance of your duties. so that's another one. it would prohibit -- that would prohibit it. there's another provision of this bribery statute that would prohibit any violation. >> excuse me? >> why aren't they in the -- >> what you're saying is holding
a meeting, taking a phone call, having a party is not illegal. that is something you're entitled to do. so why would all those statutes be any less -- >> they may well be in certain circumstances, but i think that the ones that are simply saying for example the civil service statutes that simply say you can't take anything from anybody who is a covered person. that's not vague. it just says that you can't take anything from anybody who is in your job. most federal government officials are very familiar with that. that's why you don't take gifts from anyone. the problem here is we had a state reveej that was much less stringent and the government wanted to use the open ended hobs act and active services statute in what they perceived as is at a time law. that is an inappropriate use of power. >> thank you, counsel. could i invite you to return to the lectern. our records reflect that this was your 100th oral argument
before the court. you are the second person to reach that rare milestone this se century. i distinctly recall your first argument in 1989. you have consistently advocated positions on behalf of the united states in an kpemp loirm matter. on behalf of the court, i extend to you our appreciation for the many years of advocacy and dedicated service during your tenure in the office and as an officer of this court. we look forward to hearing from you many more times. thank you. the case is submitted. >> the superior court unanimous overturned the decision of mcdonald today. there are a number of possibilities including a new trial. a plea bargen or the case could be dropped. chief justice robert for the opinion wrote there is no doubt this case is distasteful.
it may be worse than that, but our concern is not withed to ri tales of rolexes, ferraris and ball gowns it is with the government's interpretation of the federal bribery statute. mcdonald was convicted on 11 counts of fraud in 2014 for accepting gifts and loans from a wealthy vitamin executive in exchange for government favors. tonight on the communicators, texas republican congress man will share of the committee talks about cyber and data security and federal and government agencies and 2 report card released in may on agency's management information. he joined by tim starks. >> the federal government has almost 11,000 data centers. there's no reason the federal
government should have 11 thousand. you can realize saying. through the scorecard that four agencies have realized $2 billion by moving into the cloud. >> watch tonight on c span 2. >> i'm pleased that the senators of body has come to this conclusion. television in the senate will undoubtedly provide citizens with greater access and exposure to the actions of this body. this access will help all americans to be better informed of the problems and the issues which face this nation on a day-by-day basis. >> during the election i had the occasion of meeting a woman who had supported me in the campaign, and she decided to come to shake my hand and take a photograph. a wonderful woman.
she wasn't asking for anything. and i was very grateful that she took the time to come by. it was an unexceptional moment except for the fact she was born in 1894 and her name was marge ri liewis. she had been born in louisiana. born in the shadow of slavery. born at at that time when lynchings were commonplace. born at a time when african-americans and women could not vote. >> took our country from the time of its founding until the mid 1980s to build up a national debt of $850 billion which was the size of this sew-called package that came over here.
>> india's prime minister visited washington earlier this month. laid a wreath at arlington national cemetery. had lunch with president obama and business leaders and spoke to congress. here's the relationship from before the visit. it's an hour and 25 minutes. there we go. thank you. >> well, we're joking that this feels like a gallagher concert. feel free and safe and secure to sit in the front two rows if you want. the back is getting quite filled up. my name is rick. i'm senior fellow and u.s. studies here at the center for strategic international studies. csi events. i'm your security officer here at csis so just in case we have a tornado or locust or lightning
or something else issuing you'll see me raise my hand and please do follow me in orderly fashion. we'll exit the building while whatever is resolved needs to be resolved. other staff members can help as well. so here we're here to talk today about proving the visit to washington, d.c. by prime minister modi and pleased to have the federation and leader of csi to join me here on stage. you look at later today and air india one will arrive in washington, d.c. you'll see a visit to arlington cemetery, engagement with think tanks. a lot of events planned over the next couple of days, both with the administration as well as with congress. modi's fourth visit since becoming prime minister just two short years ago and this will be the third focus submit between
president obama and prime minister modi. >> all the questions that we get are what's the significance, what's it were importance about these meetings. if we don't see a nuclear agreement like we did in 2005, was it really a successful visit which is always a hard measure i think, but i think the fact that you've got such a frequent engagement between the two is both the reason and indicator of progress that we've seen on a wide range of fronts. i think u.s., india relations today are the strongest they ever have been. probably more so on the defense and security side. last year with the release of the joint strategic vision. the initiation of projects, the renewal of or tenure and upgrade. high level guiding the security partnership, but a bit less on the econ side.
the number rs pretty good. fastest growing economy in the world. largest destination for foreign investment in the markets so the number rs pretty good, but the perceptions of what you see written a lot of times publicly has modi done enough reform, is there enough happening on the ground there? at the time when you think of a u.s. leader point, divided as to global trade issues. world trade organization you don't see much views. we're not part of the same tr e trading blocks right now. and even our own attempts are actually further away today than they were years ago when we first announced our intention to do a treaty because both governments have changed the model in which they do negotiations at at that time.
certaintily help point us in th right, direction. offer a preview of what you might see as well as general perceptions to try to further our engagement. let me start at the person to my left. president of ci and also chairman of india's leading steering and control information firm. also has roots here in the united states. stanford university from 1997 to 2004. next to him is president of travel to india keep apollo on speed dial just in case something goes wrong. she is actually herself busy building out some of the high growth businesses apart from the hospital group at ahollow including india's largest pharmacy. next to her is my dear friend
ray. ray is of counsel and affiliated with all briet stone bridge. ray one of washington's original india hands and a long time men torp of mine when i began my india journey almost 20 years ago. i met him and we helped to lead the business that accompanied president clint and that was a great time. most of that isn't fit for the record. let's talk about that afterwards. >> yes, let me first turn to her and thank you for coming here. look forward to having some remarks. >> well, thank you. it's a great pleasure to be here. i'll make a few comments around three topics actually. the first, a little bit on the indian economy and where we are and to address your question about is enough happening on the ground. second, on the trade policy
front, and then third, sort of a team of mine or what does it take to really move from the potential in the india/u.s. economic relationship to actually getting that potential to happen on the ground. and perhaps we need to reset some expectations that we have of each other. so to start with on the economic side, and what's happening on ground, i think the modi government came in with huge expectations. it raised huge expectations very consciously in terms of promising a future that was going to be very different and positive for india. i think we've seen a whole slew of different programs that have been launched. many useful things have been done on the ground, whether it's the's of doing business. i wouldn't underestimate how difficult a job it was to turn that ship around and move from a situation where each year we were -- we became a more
difficult place to do business to starting to become a years place to do business. without question we have a very long way to go still. the prime minister himself recognizes that. he set a target that we should be in the top 50 in the ease of doing busy. we have a long way to go. the most positive element is tapping into something that i know that's very dear to your heart which is competitive federalism. where now a very conscious move to try to get indian states to complete one with the other. they rank each other. they rank themselves on a whole set of different criteria each year and last year the government -- well they said they would name and shame states. they said they would actually list states and list their rankings and i think many of us in business were who is
skeptical when push came to show and the actual rankings came out you wouldn't see too much there, but contrary to expectation, everything was put out there and to our great surprise, it wasn't just the top state that talked about the rankings. we suddenly found the state that was second taking full page adds out in the paper saying, you know, we're number two and the ease of doing business. and then we had other states saying we're number one in the ease of starting the business even though they were number ninth overall. second, if you take infrastructure and infrastructure investment, there were many staled projects in the country. many of thoem have started moving if you look at investment in the road sector. there's been fairly dramatic turn arounds in many projects that were earlier started and
even more new projects that have been awarded and are happening on the ground. within ci we have a body that brings together many different industry sector associations. within ascon we have a construction manufacturer's association. now for eight or nine months they've been reporting increases in orders and increases in shipments that are ranging between 40 and 50%. that's the most tangible illustration of things actually happening on the construction si side. going out and buying a lot of equipment and paying for them so they can get to work and start these projects and see them move. many other useful things that are being done, the bankruptcy reform, which was long needed by the country and passed about two
weeks ago. everyone is focused for example on gst, the common goods and services tax. without question it will be truly a game changer for india, but everyone is focused orphn t fact the gst hasn't happened. it's a question of when not if. it will happen at some time. it's become a political football between the government and the opposition. there is tangible difference on what gs the on what the law is all about. the differences are purely political. the obstacles are purely political, but when we focus on the gst we miss the many things that have happened on the reform side and happened on the legislation side. the last year the upper house of apartment parliament in india where the government is and minority needs to rely on support to pass
legislation passed 64 bills and we missed that. we focus on the fact the gst didn't get passed, but there were 64 bills that did. and those bills tended -- many oaf those were economic reform bills and they happened with cross party support. a lot has been happening both from a legislative per speck tich and a government notification perspective. without doubt there's more that's been announced that we look forward to happening. i'll mention two areas and move on. the two areas are in the last budget, the finance minister announced almost passing it seems to me a truly landmark announcement where he said that every new central government scheme would have a sun set clause and a clearly defined out
code. this sounds very basic and, certainly, if you're in business it's really basic. if you're in government, i think it's quite aspirational and it's seeing that turn into reality on the ground can truly be transformative for the country because having a sunset clause, we have a huge number of schemes that are not understood in india which continue forever and often do not have that much takeup. if we actually have a sunset clause, a clear outcome, that's very powerful. the second thing use the direct benefits transfer. instead of one of the top three budget deficit items and the top three subsidy is the fertilizer substy. use a direct benefit transfer program to provide benefits directly to farmers and move away from providing subsidized
fertilizer. again, a huge potential area. one that can have truly dramatic consequences as it rolls out. announce it as a pilot program this year, but as these things get underway and start showing up on the ground, theypowerful, a comment on trade policy. for too long our trade policy stands in the country as being defensive. it's been focused on how do we restrict the access of foreign farms to the indian market. i think we're starting to see a change in that stance. where we're starting to move to looking at how indian farms can be much more aggressive and outward looking and how our trade policy then needs to reflect that outward looking stance of indian firms by matching that stance and being much more focused on how do we improve access to foreign
markets. developing markets for indian farms. i think that change in trade policy stance will be quite dramatic in changing on trade policy negotiating positions too. i think we will go from a much more give and take. it's not only going to be take. it's going to be a give and take negotiation, which all trade policy negotiations have to be. you know, you have to not every sector will benefit, but unbalanuon balance the economy is expected to benefit. it's a perfect example of how that has turned out to the benefit of all three countries. without necessarily being the three -- being the benefits that one expected when one signed the agreement, but i think all three countries certainly most thoughtful observers would look after and say it's been very positive for all three