The opinion of the court was delivered by: BY THE COURT; ROBERT S. GAWTHROP, III
Defendant, Joseph M. McDade, a United States Congressman, is charged with accepting illegal gratuities, conspiracy, and racketeering. Currently before the court is a panoply of pretrial motions, including four motions to dismiss various portions of the indictment, a motion to transfer the trial of the case, and some discovery and evidentiary motions, all of which have been exhaustively briefed and argued. Upon the following reasoning, I find that (1) the indictment does not violate the Speech or Debate Clause of the United States Constitution, nor would the trial of this case be hopelessly doomed to violate that Clause, (2) the indictment adequately alleges all the elements of the crimes charged, (3) venue is proper in the Eastern District of Pennsylvania, (4) the defendant does not have standing, at this stage, to challenge the government's use or introduction of wiretap evidence at trial, and (5) the defendant is not entitled to a bill of particulars or to pretrial disclosure of the government's proof of his connection to the alleged conspiracies.
Congressman McDade has represented Pennsylvania's Tenth Congressional District in the United States House of Representatives since 1962. He has been the ranking minority member of the House Small Business Committee since 1982, and he has been the ranking minority member of the House Appropriations Committee, Subcommittee on Defense Appropriations, since 1985.
On May 5, 1992, a grand jury in this district returned a five-count indictment against Mr. McDade charging him with official misconduct from 1983 through 1988. Counts One and Two allege that Mr. McDade accepted cash, travel, vacations, and golf equipment from United Chem Con Corporation ("UCC") in return for his assistance in securing Navy and Postal Service contracts for UCC. Counts Three and Four allege that Mr. McDade accepted cash, travel, a vacation, and a scholarship for his son from Grumman Corporation, Kane Paper Corporation, and Sperry Corporation in return for his assistance in securing Army and Navy contracts for Grumman and Sperry. Counts One and Three charge Mr. McDade with violating 18 U.S.C. § 371 (conspiracy), and Counts Two and Four charge him with violating 18 U.S.C. § 201 (c)(1)(B) (acceptance of an illegal gratuity by a public official).
Count Five charges Mr. McDade with violating 18 U.S.C. § 1962(c) (participation in the affairs of an enterprise through a pattern of racketeering activity). In Count Five, the government alleges that Mr. McDade used his congressional offices and staff as a racketeering enterprise by soliciting and accepting bribes and illegal gratuities and by committing extortion. In addition to incorporating the factual allegations of Counts One through Four, Count Five also alleges that Mr. McDade demanded or accepted cash from UCC to sponsor a concert, that he demanded or accepted travel from Westland Oil Company, that he demanded or accepted a trip to the NCAA Basketball Final Four from Kane Paper, and that he demanded or accepted travel, vacations, and a couch from GSGS&B and GSGS&B, Inc., in return for his assistance in obtaining government contracts for those companies.
Congressman McDade now moves to dismiss the indictment on the grounds that it violates the Speech or Debate Clause of the United States Constitution and that each of its five counts is inadequately pled. Mr. McDade also requests that the court transfer this case to the Middle District of Pennsylvania for trial. In addition, both Mr. McDade and the government have submitted a number of discovery and evidentiary motions. I shall address each of Congressman McDade's motions in this Opinion, and I shall dispose of the government's motion in a separate, contemporaneous Order.
THE SPEECH OR DEBATE CLAUSE
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
U.S. Const. art. I, § 6, cl. 1 (emphasis supplied). Congressman McDade moves the court to dismiss the indictment because, he argues, it violates the Speech or Debate Clause.
History and Supreme Court Jurisprudence
The immunization of parliamentary speeches and debates against criminal and civil prosecution is firmly rooted in the Anglo-American system of government. The English Bill of Rights of 1689 represented the climax of centuries of parliamentary struggle against English monarchs, finally establishing that Parliament, not the King or Queen, was supreme. Central to establishing parliamentary supremacy was the elimination of the monarchs' utilization of the criminal and civil law to suppress parliamentary speech and to intimidate legislators. It was not uncommon for the King or Queen to arrest Members of Parliament for advocating positions contrary to the Crown's, and then to imprison those Members in the Tower of London, subject only to appeal to often obsequious royal judges. To put an end to this practice, and to announce its independence from the Crown, Parliament included in the Bill of Rights the following clause: "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be questioned in any court or Place out of Parliament." Bill of Rights, 1689, 1 W. & M., sess. 2, ch. 2, § 9 (Eng.).
The Framers of the United States Constitution took great pains to insure that their document would set up three independent and co-equal branches of government. Given their experience with the English system, our Founding Fathers recognized that the legislature could not hope to be truly independent of the executive unless the legislative acts of its members were immunized from prosecution by the executive. Using the English Bill of Rights as a model, the Framers wrote the Speech or Debate Clause into the United States Constitution.
However, unlike the English system, in which Parliament is supreme, ours is a system of three co-equal branches. As the Supreme Court has observed, "our speech or debate privilege was designed to preserve legislative independence, not supremacy. Our task, therefore, is to apply the Clause in such a way as to insure the independence of the legislature without altering the historic balance of the three co-equal branches of Government." United States v. Brewster, 408 U.S. 501, 508, 33 L. Ed. 2d 507 , 92 S. Ct. 2531 (1972).
More than two centuries have passed since ratification of the Constitution, and our legislative system has grown increasingly complex. Today, although members of Congress still make speeches and engage in debates on the floors of the House and Senate, most of the grinding of legislative machinery occurs outside the chambers of the Houses themselves -- in congressional offices and committee rooms. Consequently, in an effort to carry forward the Speech or Debate Clause's purpose of immunizing legislative acts against criminal or civil prosecution, the courts have extended the Clause beyond the chambers' doors. For example, the Supreme Court has held that acts undertaken by congressional aides, as agents of members of Congress, which would have been legislative acts had they been performed by the members themselves, are protected by the Speech or Debate Clause. Gravel v. United States, 408 U.S. 606, 33 L. Ed. 2d 583 , 92 S. Ct. 2614 (1972). The Court has also extended the protection of the Clause to committee reports, resolutions, and votes. Powell v. McCormack, 395 U.S. 486, 23 L. Ed. 2d 491 , 89 S. Ct. 1944 (1969). The Clause also protects members of Congress when they are investigating and gathering information about matters which are or may become the subject of legislation. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 44 L. Ed. 2d 324 , 95 S. Ct. 1813 (1975).
However, the Supreme Court has also held that the Speech or Debate Clause does not reach attempts by a member of Congress to influence the executive. United States v. Johnson, 383 U.S. 169, 15 L. Ed. 2d 681 , 86 S. Ct. 749 (1966). In addition, although congressional speeches and votes are protected, a promise to deliver a speech, to vote, or to solicit votes in the future is not protected by the Clause. United States v. Helstoski, 442 U.S. 477, 61 L. Ed. 2d 12 , 99 S. Ct. 2432 (1979). The taking of a bribe by a member of Congress is likewise not protected. United States v. Brewster, 408 U.S. 501, 33 L. Ed. 2d 507 , 92 S. Ct. 2531 (1972).
Congressman McDade's Arguments
The common thread running through all of the Supreme Court's opinions, and almost all of the lower court opinions, is that analysis under the Speech or Debate Clause is act-based. The courts have interpreted the Clause as protecting legislative acts only, and most of the cases have turned on the determination of whether a particular action of a member of Congress was or was not a legislative act. The question Congressman McDade now raises is whether the Clause also protects legislative status, and in particular, committee status.
The indictment itself includes references to Mr. McDade's committee positions, and the government admits that it intends to prove that Mr. McDade was able to use his status as the ranking minority member on two House committees
to his personal advantage. The government intends to show that Mr. McDade's committee status made him a more attractive target for potential bribers, and that the alleged gratuity-givers and bribers in this case viewed Mr. McDade not as just another member of Congress, but as a very powerful member of Congress. Mr. McDade, joined by the Speaker and Bipartisan Leadership Group of the House of Representatives as amici, argues that the indictment, by its very mention of Congressman McDade's committee status, violates the Speech or Debate Clause. Further, Mr. McDade and the Leadership Group argue that, in order for the government to show, as it must, that the alleged bribers' and gratuity-givers' beliefs that Mr. McDade was more powerful than an ordinary member of Congress were reasonable, it will have to introduce evidence of the congressional committee process itself, which would violate the Speech or Debate Clause. Alternatively, they argue that in order to show that the beliefs of the alleged bribers and gratuity-givers were not reasonable, Congressman McDade will be forced to introduce evidence about the committee process and his own legislative acts. Thus, the argument goes, Mr. McDade, in order to defend himself, will be impelled to introduce evidence that, if introduced by the government, would violate the Speech or Debate Clause. Since the Speech or Debate Clause is not merely an evidentiary rule, but a Constitutional bar against prosecutions of Members of Congress for their legislative acts, Mr. McDade and the Leadership Group argue that government cannot force Mr. McDade to introduce the protected evidence himself.
This argument does carry some persuasive force, but it is only relevant if the evidence which Mr. McDade professes to be protected by the Speech or Debate Clause -- his legislative and committee status and the congressional committee process itself -- actually is protected by the Speech or Debate Clause. I thus turn to the ultimate question on this issue: is legislative status protected by the Speech or Debate Clause?
The Speech or Debate Clause and Committees
As far back as the early Nineteenth Century, courts have applied the Speech or Debate Clause and its state constitutional equivalents to legislative committees. In Coffin v. Coffin, 4 Mass. 1 (1803), Chief Justice Parsons of the Supreme Judicial Court of Massachusetts, considering Massachusetts' equivalent of the Speech or Debate Clause, wrote:
If a member therefore be out of the chamber, sitting in committee, executing the commission of the house, it appears to me that such member is within the reason of the article, and ought to be considered within the privilege. . . . He ought therefore to be protected from civil or criminal prosecutions for every thing said or done by him in the exercise of his functions, as a representative in committee, either in debating, in assenting to, or in draughting a report.
The Supreme Court has joined in Chief Justice Parsons' reasoning that, in order to effectuate the purposes of the Speech or Debate Clause, the Clause should be extended to protect the committee work of members of Congress. See, e.g., Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377 (1881); Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019 , 71 S. Ct. 783 (1951). In Gravel v. United States, 408 U.S. 606, 624, 33 L. Ed. 2d 583 , 92 S. Ct. 2614 (1972), the Court held that the conduct of a member of Congress at a committee hearing is protected by the Clause. The court went on to define the types of "legislative acts," including committee acts, which are protected by the Clause: "they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to which the Constitution places within the jurisdiction of either House." Gravel, 408 U.S. at 625.
Congressman McDade and the Leadership Group rely heavily on a recent case from the Eleventh Circuit, United States v. Swindall, 971 F.2d 1531 (11th Cir. 1992), to support their argument that legislative status is protected by the Speech or Debate Clause. They argue that because the government has made Mr. McDade's committee status part of the basis of the indictment, an act-based analysis is insufficient.
In Swindall, the defendant, a former member of the United States House of Representatives and the House Banking and Judiciary Committees, was convicted of making false material declarations before a grand jury about his knowledge of, and participation in, money laundering activities. In the grand jury phase of the perjury case, the prosecutor questioned the defendant about his knowledge of federal money laundering statutes, prefacing his questions with clauses such as "being a member of the Banking Committee" and "in your capacity on the Banking Committee." Swindall, 971 F.2d at 1539-40. Further, at trial, the district court permitted the government to introduce evidence of the defendant's committee memberships, and also permitted the government to argue to the jury the inference that the defendant had knowledge of the money laundering statutes because testimony was taken concerning those statutes during hearings conducted by the committees on which he served.
On appeal, the Eleventh Circuit reversed three counts of the defendant's nine-count conviction. Summarizing its decision, the court said: "First, our review
of Supreme Court precedent convinces us that the privilege protects legislative status as well as legislative acts. Second, here the government's inquiry into Swindall's committee memberships actually amounted to an inquiry into legislative acts." Id. at 1543. The court continued, "if the inference is drawn that Swindall acquired knowledge of the statutes through his committee memberships, one sees that Swindall could have acquired such knowledge only by performing a legislative act such as reading a committee report or talking to a member of his staff." Id. (emphasis in original). Close analysis leads me to conclude that the second of the court's alternative holdings, that the government had inquired into the defendant's legislative acts, is the more concise and specific one, and, indeed, the actual basis of the Swindall decision. The first holding, that legislative status is protected by the Speech or Debate Clause, is much broader and perhaps unnecessary, given the second holding. That first holding, which expatiates beyond the salient facts of the case and the actual ratio decidendi, thus has the ring of dictum.
Although written under the rubric of status, Swindall turned on a legislative act -- the mental assimilation of information, the thought process involved in a legislator's learning about a particular area of knowledge -- in that defendant's case, the techniques, the whys, and the wherefores of money laundering. Although to look at an individual sitting, listening, and absorbing information does not at first blush seem to be an "act," those activities do fall squarely within the definition of "act."
Perhaps because of its linguistic first cousin "action," one tends to think of an act in terms of physical movement, the expenditure of physical energy. But using the mind is indeed an act, and when done in the context of one's legislative duties, it is, in fact, a legislative act.
Looking at the evidence presented in Swindall, one sees that the government's use of the defendant's legislative status in that case is much different from its proposed use in this one. There, the "inference allowed the jury to infer that Swindall performed legislative acts to acquire knowledge about the bills." Id. at 1546 (emphasis in original). Here, the government is not attempting to prove, either directly, or by implication, inference, or innuendo, any of Congressman McDade's legislative acts. Rather, his legislative status is introduced for its own sake, to show why the alleged bribers and gratuity-givers might have chosen this particular congressman, by demonstrating that, in the real world, legislators are not fungible, co-equal, peas in congressional pod. Some, because of their status, tend to stand out, making them more appealing prospects for would-be illicit pecuniary importuners. The reason for the second Swindall holding -- that the government attempted to draw inferences about the defendant's legislative acts by showing his legislative status -- is missing in this case. Here, the defendant's status is offered to explain the alleged acts of others.
Congressman McDade's and the Leadership Group's argument thus rests on the first holding in Swindall : that legislative status itself is protected by the Speech or Debate Clause. As mentioned above, this broad holding was not necessary to resolve the case before the Eleventh Circuit, but to the extent that that court stated that legislative status qua legislative status is protected by the Speech or Debate Clause, I am constrained to respectfully disagree.
The Swindall court began its discussion of legislative status by pointing out that the Supreme Court has never explicitly distinguished between "'activity' and 'status.'" Swindall, 971 F.2d at 1545. Finding no reason to distinguish between activities and status, the court extracted from the Supreme Court's opinion in Gravel three questions which a court should ask when determining whether a matter is protected by the Speech or Debate Clause, and it asked those questions in the context of committee membership: "Does inquiry into a legislator's committee memberships directly impinge on or threaten the legislative process? Does it make legislators accountable before a possibly hostile judiciary? And does it indirectly impair legislative deliberations?" Swindall, 971 F.2d at 1545 (citations omitted). The court answered all three questions in the affirmative, thus finding that committee membership is protected by the Speech or Debate Clause. Addressing all three questions together, the Swindall court observed that "levying criminal or civil liability on members of Congress for their knowledge of the contents of the bills considered by their committees threatens or impairs the legislative process." Id.
However, this observation does not so much support the proposition that legislative status is protected by the Speech or Debate Clause as it does the proposition that the Clause prevents the government from using the committee membership of a member of Congress to prove his or her knowledge of particular legislation, since the act of acquiring such knowledge is a legislative act. I agree that to allow such behavior by the government would be to allow the government to circumvent the Clause, and would give members of Congress an inappropriate disincentive to acquire direct knowledge of bills pending before their committees. However, I do have trouble with extending that proposition to the conclusion reached by the Swindall court that legislative status is always protected. Taken to its next logical step, such reasoning would immunize members of Congress from prosecution for crimes such as bribery, extortion, or the acceptance of illegal gratuities, since official status is an element of those crimes, and since the status of a member of Congress could never be proved because of the Speech or Debate Clause. Neither the Framers, nor presumably the Congress which drafted the statutes criminalizing such behavior, could have intended such a result.
If the Swindall court truly intended to hold that legislative status itself is protected by the Speech or Debate Clause, it made a substantial departure from the Supreme Court's act-based analysis. The Supreme Court's opinions repeatedly refer to "legislative acts," "legislative motivations," and "legislative activities." I do not see how the ordinary meanings of the terms "act," "motivation," and "activity," terms which conjure up the image of some sort of deliberate behavior, could possibly include "status," which is not behavior at all, but merely a condition or circumstance. In Gravel, the Court noted that, since Kilbourn v. Thompson 103 U.S. 168, in 1881, it had recognized that "a Member's conduct at committee hearings . . . may not be made the basis for a civil or criminal judgment against a Member." Gravel, 408 U.S. at 624 (emphasis supplied). The Court could have, but did not, hold that mere committee membership was protected. The Swindall court reasoned that the Supreme Court had never distinguished between "activity" and "membership" because it had never seen a distinction. But it is the opinion of this writer that the Court has never made such a distinction because it has never been asked to make one, and that if it were asked, it would make the crucial distinction.
Given the act-based analysis applied by the Supreme Court in cases such as Johnson, Gravel, Brewster, and Helstoski, I believe that the Court would hold that committee membership, and legislative status in general, are not "legislative acts" and that, therefore, legislative status is not protected by the Speech or Debate Clause. Simply put, legislative status and committee membership are not "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Gravel, 408 U.S. at 625. An indictment's mere mention that the defendant is a high-ranking member of a particular congressional committee, and that those who would corrupt our legislative process might, therefore, view the defendant as a more furtile field in which to seed their money, does not implicate the concerns which the Framers had in mind when drafting the Speech or Debate Clause: separation of powers, the independence of the legislature, and free and open discourse in the Houses of Congress.
In Government of Virgin Islands v. Lee, 775 F.2d 514, 522 (3d Cir. 1985), the Third Circuit noted that "the cases interpreting the Speech or Debate Clause in which legislative immunity has been triggered have involved manifestly legislative acts; acts which were so clearly legislative in nature that no further examination had to be made to determine their appropriate status." In that case, the defendant, a Virgin Islands legislator, argued that his conversations and meetings with other officials were protected by the Virgin Islands' version of the Speech or Debate Clause. Applying the same act-based analysis which is applicable to the Speech or Debate Clause of the United States Constitution, the Third Circuit held that "it is the content of Lee's private conversations, and not the mere fact that the conversations took place, that determines whether Lee is entitled to legislative immunity." Lee, 775 F.2d at 522. Likewise, here it is the content -- the quality and character -- of Congressman McDade's acts, and not the mere fact that he is a member of Congress, that determines whether he is entitled to legislative immunity. Indeed, in Helstoski, the Supreme Court took the act-based analysis so far as to suggest that specific conversations could be divided into protected and unprotected parts, with the protected parts, "references to legislative acts," excised so that the remainder of the conversations could be admitted into evidence. Helstoski, 442 U.S. at 488, n.7. These cases clearly require this court to take an act-based approach when analyzing the Speech or Debate Clause. Having taken such an approach, I find that the Clause does not protect legislative status.
The Congressional and Committee Processes
Congressman McDade and the Leadership Group also advance the argument that the congressional committee process itself is protected by the Speech or Debate Clause. They argue that, in order to show that Mr. McDade wielded extra power because of his status as the ranking minority member on two committees, the government will have to introduce evidence of how congressional committees function, which evidence is protected by the Clause. The government denies that it intends to introduce such evidence, but it also takes issue with the suggestion that that evidence would be protected by the Speech or Debate Clause. Congressman McDade and the Leadership Group further argue that, in his defense, Mr. McDade will have to show that even if the alleged bribers and gratuity-givers believed that he exercised extra influence, those beliefs were unreasonable. To do this, the argument goes, he will have to introduce evidence of the committee process, his roles on the two committees, and his legislative acts, which evidence is protected by the Speech or Debate Clause.
Neither Mr. McDade nor the Leadership Group cites a single case for the proposition that the Speech or Debate Clause prohibits the prosecution or the defense from telling a jury generally about the congressional process. Indeed, in Swindall, the district court issued a pretrial order which allowed the defendant to call Representative Barney Frank to testify about the number of bills before the defendant's committees, and to "argue that it is not reasonable to infer that a congressman is intimately aware of every bill before his committee." Swindall, 971 F.2d 1531.
Likewise, Representative McDade will be able to call witnesses to testify that his committee positions did not give him extraordinary influence. I see no reason why the Speech or Debate Clause would be violated by allowing the defendant to call a witness to give the jury an introduction to the functioning of congressional committees. The testimony would be along the lines of "this is how Congress works" or "this is how committees work" in general, rather than "this is what Congressman McDade did to get this particular bill passed" or "this is what Congressman McDade often does to influence the votes of other members of Congress." Indeed, if the hearsay hurdle could be overcome, this testimony could just as well be given by a high school civics teacher. General educational or background evidence which the defendant himself presents to the jury to place the government's evidence in context cannot be considered to violate the Speech or Debate Clause. It would not be evidence of a legislative act of the defendant, nor would it be introduced "against" him. And Mr. McDade would not be being "questioned in any other Place," to use the words of the Clause, since he would be introducing the evidence himself.
The government is not forcing Congressman McDade to waive his legislative privilege or introduce evidence of his legislative acts in this case. As mentioned above, I do not believe that general background evidence or educational instruction about how congressional committees work is evidence of legislative acts; thus, Mr. McDade can introduce such evidence without having to waive his legislative privilege at all. But if he wishes to go even further, partially waiving his privilege in order to impugn the reasonableness of the other alleged wrongdoers' beliefs by introducing evidence of his legislative acts, he may do so. As Chief Justice Parsons said of the Massachusetts version of the Speech or Debate Clause, "it appears to me that the privilege secured by it is not so much the privilege of the house as an organized body, as of each individual member composing it, who is entitled to this privilege, even against the declared will of the house." Coffin v. Coffin, 4 Mass. 1 (1803). Just as a member of Congress is entitled to the privilege against the will of the entire House, he or she would also seem to be entitled to waive that privilege. Unlike Swindall, here the government's case, both in its proffered evidence and argument, does not itself violate the Clause, since it does not invite the jury to consider, or even infer, any legislative acts. Nor does it present the defendant with an irreconcilable dilemma, or even worse, a Hobson's Choice,
over whether to waive his legislative privilege.
Mr. McDade also argues that the special First Amendment and Speech or Debate Clause concerns which permeate this case should cause the court to hear all of the government's evidence before deciding whether the case should go to trial. Because I do not find that any of the allegations in the indictment carries with it an inevitability, or even a high probability, of violating the Speech or Debate Clause, and because I find no support for the proposition that the government should have to prove its case and proffer all its evidence in the pretrial stage, I shall not order an evidentiary hearing. If questions of admissibility on Speech or Debate grounds arise during trial, Mr. McDade may make objections. Those objections, like all other objections at trial, will be ruled upon consistent with relevant Supreme Court and Third Circuit precedent, and with this Opinion. But I do not find that this indictment raises such grave constitutional concerns as to warrant the taking of such extraordinary steps as pretrial evidentiary hearings or offers of proof.
The Speech or Debate Clause was not intended to immunize members of Congress from criminal or civil prosecution merely because of their status. The Clause was intended to protect the legislative acts of members of Congress in order to preserve legislative independence and to encourage vigorous legislative debate, not "to make Members of Congress super-citizens, immune from criminal responsibility." Brewster, 408 U.S. at 516. Simply being a member of Congress or a committee member is not a legislative act. As the Supreme Court said in Brewster, "the shield does not extend beyond what is necessary to preserve the integrity of the legislative process." 408 U.S. at 517. Extending the protection of the Speech or Debate Clause to legislative status would do nothing to help preserve the integrity of the legislative process. If anything, it would adversely affect the public perception of legislative integrity by creating the impression that members of Congress are immune from prosecution merely because they are members of Congress. Surely, the Framers did not intend such a result.
ACCEPTANCE OF ILLEGAL GRATUITIES
Counts Two and Four of the indictment charge Congressman McDade with violating 18 U.S.C. § 201(c)(1)(B), Acceptance of an Illegal Gratuity by a Public Official. That statute holds criminally liable:
Whoever-- (1) otherwise than as provided by law for the proper discharge of official duty-- . . . (B) being a public official . . ., directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official.
18 U.S.C. § 201(c). Counts One and Three, the conspiracy counts, and Count Five, the RICO count, include violations of § 201(c)(1)(B) as overt or predicate acts. Mr. McDade moves to dismiss Counts Two and Four in their entirety and those allegations in Counts One, Three, and Five which rely upon his alleged violations of § 201(c)(1)(B), on the ground that the indictment fails to adequately plead the elements of the offense of accepting illegal gratuities.
Congressman McDade's first argument is that the indictment fails to plead that he took or promised to take a specific action for each gratuity he allegedly accepted or demanded. The statute itself does not include a quid pro quo requirement, but Mr. McDade asks the court to read such a requirement into the statute, as the Supreme Court did in construing the Hobbs Act in McCormick v. United States, 500 U.S. , 111 S. Ct. 1807, 114 L. Ed. 2d 307 (1991). In that case, the Supreme Court held that an elected official could not be prosecuted for extortion for accepting campaign contributions unless "the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act." McCormick, 114 L. Ed. 2d at 326 .
Any comparison of McCormick to the case at bar must, of course, start with the obvious observation that McCormick was a Hobbs Act case, while the current argument is about the gratuities statute. It is thus doubtful whether McCormick controls at all.
But even if McCormick did apply to the gratuities statute, I do not believe it would require the government to plead a quid pro quo in this case. To begin with, the McCormick court explicitly did not decide whether its reasoning should carry beyond the campaign contributions context. The court said, "we do not decide whether a quid pro quo requirement exists in other contexts, such as when an elected official receives gifts, meals, travel expenses, or other items of value." Id. at 326, n.10. The McCormick opinion concentrated not on the Hobbs Act itself, but on the character of campaign contributions and the appropriateness of using them in a Hobbs Act indictment, further indicating that the Supreme Court's holding was a very narrow one, applicable only to campaign contributions, which have historically been given special First Amendment status. See, e.g., Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659 , 96 S. Ct. 612 (1976). The Court explained that it would make no sense "to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after ...