Can A Private Citizen Perform An Official Act?

Over the last several decades, the Supreme Court has taken steps to limit the reach of honest services fraud prosecutions. As far back as the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 360 (1987), in which the Supreme Court struck down the doctrine under the mail and wire fraud statutes, the Court has declined to construe those statutes "in a manner that leaves [their] outer boundaries ambiguous and involves the Federal Government in setting standards … of good government for local and state officials." Even after Congress resurrected the doctrine by statute, the Court has continued to prevent the law from being used in a manner that deprives defendants of their right to due process. While it is understandable that prosecutors would seek to use whatever tools they have to punish "deception, corruption, abuse of power" and other forms of wrongdoing, "not every corrupt act by state or local officials is a federal crime." Kelly v. United States, 140 S. Ct. 1565, 1574 (2020). In this article, we discuss the importance of the "official act" requirement established in McDonnell v. United States, 136 S. Ct. 2355 (2016), and how its logic should lead to a parallel requirement that private citizens should not be chargeable with the commission of official acts as part of a scheme to deprive the public of honest services.

The 'Official Act' Requirement In McDonnell

McDonnell involved the federal prosecution of former Virginia Governor Robert McDonnell and his wife for honest services fraud and Hobbs Act extortion relating to their acceptance of gifts and loans from a Virginia businessman whose companies were attempting to persuade public universities in Virginia to perform research studies on a drug developed by those companies. 136 S. Ct. at 2361-63. At trial, the prosecutors and defense counsel all agreed that the court should define honest services fraud by reference to 18 U.S.C. §201, the federal bribery statute that makes it a crime to receive or accept anything of value in exchange for being "influenced in the performance of any official act." Id. at 2365. That statute defines an official act as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit." Id. (quoting 18 U.S.C. §201(a)(3)). In this case, McDonnell's actions involved setting up a meeting for the businessman and talking to other state officials. The question for the Supreme Court was whether these were "official acts" under the federal bribery statute.