mr chief justice in may please the court the government argues that in quid pro quo bribery official action in compass is anything within the range of official duties in order to reach that conclusion it asks that you disregard the nine zero decision of th court the government is wrong in order to engage in official action an official must either make a government decision someone else to do so the line is between access to decision makers on the one hand and trying to influence those decisions on the other and that's the sun diamond case of the no case to refer to yes your honor the sometime a case than i know case and i think what sometime in confirms is that one official simply refers someone to another official an independent decision maker for an objective decision he hasn't crossed that line into prohibited official act i take it all parties concede that the act of the university official to 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 you tell me the posture of the case with reference to u nder virginia law or 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 were you on here what is the state of the law and the parties agree on this point your honor i think that the parties agree that the governor at least had a bully pulpit authority but he had very little authority to actually direct any university researcher to do anything and here i think one of the critical question there are two critical questions one was the jury told that  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 if there's a difference on the jury instructions because the jury still test that with a hypothetical suppose suppose that somebody knew that there was a contractor who was going to award a very large contract to run if two or three firms that that he was meeting with and and a company paid to make sure that they were on the meatless 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 this billion dollar contract with a marriage would that be sufficient your honor i think that probably would be official action because they're the only way you can even get a decision in your favor is be bought by being one of the three people on that list so being on that list is a prerequisite to getting a decision being denied don't deny on that list is a denial of the decision and that's an official governmental action here jury wasn't structured 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 had called up a staff member and said i'd like to you to meet with this fellow johnny williams i don't really trust him his products a little hinky but you're the expert so meet with the guy and exercise your completely unfettered independent judgment let me get let me just change the hypothetical a little bit suppose that the governor is going to make a decision and eventually i'm going to make a decision that will help either a b and hurt either a or b and the governor says you know i'm going to 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 violate it for a 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 is this court said it's on dime they're meant to target the worst form of ethical misconduct the corruption of official decision making and if what if it's not just sitting and maybe i wasn't i should shop in this suppose that 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 the decision it's not just the meeting i think the more likely your to get to that official  do we to with the evidence in the case that the university individuals who were saying whether or not to do the studies themselves felt pressured there both testimony and documents in which the pros and cons of accepting these studies was discussed right 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's a good idea that they were honorable people obviously put 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 is a legal one any factual one legally you still need to instruct the jury that it had to find that government panel tried to actually influence the government decision and here was an instructor so they could have completely but rely on it isn't this i thought that this crime was taking money in 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 they aren't irrelevant the question is what was his intent at the moment he took the money conduct tobacco commission funded state studies but you still need to tell them what that is but 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 in the court of appeals opinions make clear here in this case the corrupt agreement turned entirely upon is the district court case said it hinged upon whether the five specific acts were in fact official act because in the absence of any direct evidence of a corrupt agreement the government's argument was that you could infer one f the pattern of actual official acts on the one hand and the pattern of gifts and loans on the other in the temporal connection between the two and so is it your position that a sixty the supplemental joint appendix the in the instructions are numbered which makes it  but the judge instructs the jury that official actions are set forth in the five paragraphs of the indictment and is it your position that at least some of those are no official acts 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 to to be and in an official but i take it that at some point your position is that a government or the an official act must be the exercise of governmental power is that your position or your own it's either making a decision on on an exercise of governmental power trying to influence as in the birdsall case where the defendants there were trying to persuade the grant of clemency but if you're simply setting up a meeting so that somebody can appeal to the independent judgment of an independent decision maker and you're not trying to put your thumb on the scale of the outcome of that meeting then that simple referral can't possibly be official action after all government officials refer we also argued that the jury was improperly instructed on this which is just a sort of margot's to the point i think you were making if the jury was improperly instructed then you don't actually assume all of the evidence in favor of the government the question then becomes  have been required to convey it here even if the jury completely agreed with us and they very well may have under these erroneous instructions they still would have been required to convict because under these instruction simply referring somebody to a meeting without trying to influence the outcome of that meeting constitutes official governmentally i suppose arranging a meeting could be official government action if that were your job in other words you are 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 that's your job that's so 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 referrals to meetings with other officials so that best the alleged bribe here here johnny williams can try to persuade them to his cause well can i follow up on that because what you just suggested and it is that you could suppose that there were a schedule or for a governor or for the president or whatever and that schedule and i was selling the meetings so you would think that's part of her job and if i just understood you correctly that falls within the statute no you know i think that would be a very close case that that would be 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 you know it chief justice you might actually be violating a lot of other laws including the separate provision in section two hundred one that prohibits you from undertaking any act in violate one of your feet official duties in exchange for money or five u s c seventy three fifty three which prohibits you from from taking anything from anyone whose  affected by the performance or nonperformance of your duties but i think that the line has to be and the only wind that comes out through the cases is you're actually either making a decision on behalf of the government or you're urging someone else to do so you're trying to push them into the already when you says 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 he's also in the government is also guilty but wait that's a good guess yes but really 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 effected last week and that's so common it can't pick that up but then you use the word that's not exactly a legal word and what i'm looking for is a set of words that will describe in both sides position write as the words that describe the criminal activity involved in talking to or influencing the person who does create the official act like a pardon like a word a contract like folk like etc you know those are the words that i can't find and i'd appreciate your opinion sure your honor and i think that the answer is that what district courts have to do is understand the general rule which i think at some level has to be an attempt to influence and then flesh it out in a way that's appropriate to the facts of the can we want to use attempt to influence my goodness letters go by does over to the secretary of hud to the secretary of h h s to the secretary of the system secretaries and they say my constituent smith has a matter before you that has been pending for eighteen months we would appreciate it if you would review that and take action and then the elected official says to smith i did my best on this and smith thinks it's good he's used i don't think that's the right word and i want to know what the right words are true 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 speak instructions are generally tailored to the case an example out of course they are but you have to have the standard that will distinguish the urge or sure from the one who a criminal and one who doesn't and in the ring case i thought the judge who very had some very useful instructions and where she wrote and this is at page ten eighty three of the joint appendix therefore official action includes the exercise of both formal official influence such as the legislatures vote on legislation and informal official influence such as a legislature's behind the scenes influence on other public officials in the legislative or executive branch or not and we have it there we have it all these letters going over saying please look at mrs smith's and vick should notice and mrs smith who by the way took me to run just last week and i completely agree your honor which is why in our proposed instruction i want to read it when you just read won't do well and that's why in our propose instructions i think it needs to be tailored further to the facts of the case on our case we went on to say say nearly arranging a meeting attending an event hosting a reception or making a speech are not standing alone official  the key to that word in there is nuremberg yes your because sometimes it could yes you and somebody mind how the embarrassing question merely when it can or merely when it can't give me a little in lightman you honor i think that the answer is if if the evidence shows that there was and 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 attempt an attempt to try to push the separate decision makers that you supposedly trying to influence one way or another but you really are just sending it over for a meeting and that independent decision makers left to their independent judgment then you haven't crossed that line but i think i agree on and i thought that judge you felt did a very good attempted defining because she actually went further than what i just read to you just by she continues along the lines that we proposed in our destructions that quote mere favoritism as evidence by a public willingness to take a lobbyist telephone call or to meet with a lobbyist is not an official act so i think that the idea is your honor i understand justice by the influence itself doesn't totally solve the problem but what district court judges do that then you then explain to the jury what need to either make a decision on behalf of the government who are trying someway to use your influence to pressure to persuade or cajole someone else who has governmental power to make a decision on a night with justice  just don't see the limiting principle in the second part of your own i think in many in some cases i think the limiting principle might be difficult it's not a perfect in precise formulation but i think in this case it's a particularly easy principle because here the jury wasn't given any instruction on the line at all so just as prior 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 that governs their conduct i completely understand can your view and in the hypothetical so been thrown the janitor who gets the bottle of beer in order to clean your classroom first is that is that a governmental act certainly not in my view but the governor what's the difference the difference is one one is you're exercising power on behalf of the government as a whole so the janitor for example if he's buying 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 so to when you simply send somebody to another official for an independent and objective decision by that official but you don't try to put your thumb on the scales of that decision you haven't crossed the line and i think it's very important in a criminal statute like this because if you really do think that a referral just simply making a referral is official action that crosses the line into bribery i think you do have some very serious vagueness concerns with the  a service and i am sort sure i'm sure it depends on who's making the referral over the call right in justice briar's hypothetical if it's the congress person calling somebody and say could you look into this matter for my constituent and the person should look at it i suppose and that's one thing if it's the president who calls and says i want you to look at this matter for my constituent that might exercise considerably more influence to things your honor first you still do need to tell the jury that that's what they have to find and here the jury was never closed 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 it at 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 government election so justice kennedy in the letter being sent over from a senator since that isn't within the range of official duties that counts under the government's formulation and under the jury instruction is given since it is after all the settled 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 well of 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 that he made day in and day out during this administration where he simply sent a constituent to the appropriate official mr undersize appropriate judgment if you said something before and i might have misunderstood you but do you think that of the five state official acts do you think none of them meet the standards that your suggestion or do you think some of them do and some of them tell it to answers first of all we don't think that any of the standard ok so i second lead 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 pick the cut the health care leaders reception they could have concluded that that was an official act and that was the only basis to convict and they could have agreed with our evidence on everything ok that might be right it might be that that you still have a winning argument even if some 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 know if they had actually proved what was  indictment in the case i think that this would be it would be making a different argument but the problem is they didn't prove the government don't try to encourage anybody the one issue when something like that your argument is a sufficiency argument yes rather than this was this is not an official and i just want to be clear we have two separate arguments here one is on the jury instructions were argument that even if they agreed with others argue the facts they still would have been required to convict given these erroneous jury instructions and secondly our second argument is the sufficiency argument even a properly instructed jury in our view could not have concluded that government down of course just to be clear you said at the outset you don't think any of these are official acts but then i thought i heard you encourage them to do it yes if they had proved that he had tried to encourage them to do that that would have been officially an official act our argument is that first the jury was never properly instructed on that question and second he never did in fact urge university research to do anything if i could just conclude before reserving the remainder of my time for rebuttal at the one a vent where he actually had direct contact with university researchers justice kagan this was the luncheon held at the mansion that all of the witnesses testified who were there actually testified as to two things with respect to the governor first he simply asked neutral 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  categorical carve out from the concept of an official act for things like meetings phone calls events that in his view do not further advance or attempt to influence a particular government action but simply provide somebody with access to the government well he's not he's not the only one there's an extraordinary document in this case and that's the amicus brief filed by former white house counsel to president obama a former white house counsel to president george w bush former 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 in their brief that if this decision is upheld it will cripple the ability of elected officials to fulfill in a representative democracy now i think it's 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 this cannot be prosecuted conduct i think 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 and i think it's important to pause and look at the implications of what petitioners pay to play theory of government really is that people can pay for access that they can be charged to have a meeting or have a direction made to another  government 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 the case and said can you meet with someone so all he wants to do is sit down with you and persuade you why you should file a brief supporting his case but getting of the door mr chief justice is one of the absolutely critical so is your answer yes that that's a felony if somebody whether the government can prove a quid pro quo and now we're moving into the realm of campaign contributions were this court has given very strict guidelines about when a jerk it's not a campaign contribution what it is easy takes him to lunch and  expensive lunch at that ok because the quid side is not limited the government has argued continuously that in for a penny in for a pound ok so we don't have the limitation on the qui side we have a passable imitation frame of mind and now we're looking to the quote side and you want to remove any limitation they are ok now why do i think that's a problem two very fundamental reasons and it's not because i'm in favor of honest dishonest behavior i'm against it and what you've just listed somebody 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 where the department of justice in the executive branch becomes the ultimate arbiter of how public the fish feels 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 now suddenly to give that kind of power to a criminal prosecutor was virtually uncontrollable it was dangerous in the separation of powers sense so in my mind right in this case nothing to do with this petition nothing to do with him but in this case is a as as fundamental a real separation upright of the powers problem as i've seen and and and i'm not quite certain what the words are there won't be perfect they will leave some dishonest conduct on prosecuted 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 do appreciate your help on what the right words are and i'll tell you right now if  are going to say when a person has lunch and then rights over any trust to be says i would like you to meet with my constituents just been evicted from my house you know if that's going to criminalize that behavior i'm not buying into that i don't think so so i want some words that will help with what i see as is not complicated and difficult and basic the problem is i can think just let me first argue the position that i came here to argue which is that the official action is not limited by some arbitrary litmus test 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 that the right way to look at this statute is to recognize that it has multiple elements we're talking 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 does not have to do all the work you do have to have somebody engaged in their official capacity you then have to have something that they do within their range of official duties which is going to lunch is not going to be third to need a quid pro quo which means that the government is going to have to show that the person allowed themselves to be influenced in their conduct by the thing of value that they receive which is to say that somebody is basically saying i'm going to make or for over to another agency for you only if you buy me lunch that is not in your brief correctly you can plug in agreement over time you can imply a contract over time and if the lunch takes place first and there's no preconditions but after the that's exactly the position that your honour's opinion in evans the separate concurrence explained as a proper means of administering the quid pro quo requirement as an intent issue in a criminal case there is a very critical protection here it's requirement of showing something beyond a reasonable doubt to a jury and if you have ordinary conduct that's fully disclosed in accordance with regulations which do stray plea limit when people can receive free i don't see what the relevance of those regulations is you cite you say there are certain safe harbors created by federal regulations those apply to federal employees and federal officers what do they have to do with the governor of a state or a state employee well that they don't justice alito this case has been litigated on the submission that section two hundred one informed the meaning of official action for purposes of the hobbs act and the honest services statute and as a result the parties have engaged very heavily on the effect on federal officials and i think the justice prior's question was primarily directed at them i do think that there are different issues that arise with respect to state officials but the mens rea or requirements that i've been talking about are going to be fully applicable how this doesn't answer justice breyer's basic justice kennedy i do think that the requirements of the criminal law in proving something by beyond a reasonable doubt are a substantial what is it they're trying to prove now of course this is a state case not a federal case is a state official a federal law but a state official i don't know i've only been corrupt really involved in political campaigns but my peripheral in the vince is me that a candidate will go out and h with hundreds of people hundreds everybody who wants to give him lunch great and 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 some point it becomes very dishonest so what but that's a matter for campaign laws wait now i've also been involved in the justice department and we've received many many letters in the n t customisation have you look into such and such but i know perfectly well but that senator just wants to go back to the constituent and say see i did my best that's all 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 twelve 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 but you know that's that's what i want your view on what justice breyer i'm going to push back because i think that the line that 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 that would be sent if this court put its imprimatur 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 metaphorical way a thumb on the scale so the ultimate decision would send a terrible message to citizens what i think we're looking for gaining access by making campaign contributions is an everyday occurrence and maybe it's a bad thing but it's very widespread how does it fit how does that play so justice alito gaining that you know if if the 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 were the biggest contributors to his campaign would you please meet with them and 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 the meeting was because these people this entity happened to be a very big supporter of that would be the only thing separating lawful from awful conduct there let me say two things in response to that first this court has addressed that very issue in the mccormick case and it  that merely taking favorable action at or around the time of the receipt of can't campaign contributions is not sufficient to show a quid pro quo and is not a crime nobody doubts that if there's a quid pro quo for a vote something that i think mr francisco is prepared to concede is official action although i'm not sure why since it doesn't personally exercise sovereign power if a legislator cast a vote as a dissenting vote from majority action but nobody disputes that that is a crime therefore this court has already carved out evidentiary and instructional safeguards that prevent against a jury inferring a quid pro quo nearly from the coincidence of timing but i want to come back to something that is even more fundamental and that is the role of the first amendment in this case because petitioner has sought to wrap and self 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 an issue he relies very heavily on citizens united well ignoring a critical piece of citizens united this court in citizens united look back to the circumstances that prompted the federal election campaign act in hundred two 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 no producers paying a million dollars 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 three fifty six of the citizens united opinion the practices buckley noted would be covered by the bribery laws c e g eighteen u s c two zero one if a quid pro quo arrangement were proved now of course it's 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 what so if you have a governor who's priority is jobs for his state and there's a c e o who's thinking about locating a plant in his state you can only do it he says if you get tax credits from the state so the governor's talking to when he says 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 three point fishing for trout and they talk about whether they can get tax credits deferred taxes if they see you know open since plant in the state now is that a felony i can say is accepted and after fishing and he discussed official business at that time i don't think so mr chief justice but if you change the hypothetical instead instead of an afternoon of trout fishing 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 proposal i thought i didn't think the government put any weight on the amount of money quoted in other words you know i don't know how much an afternoon of crawfishing is worth what i gather you get you can bitch hard for that in and pay for it i thought that didn't matter i thought it was whether he was engaged in an official lack under circumstances in which a journey could find he did it because of the gift yeah and so if all he's doing is talking about ways to get jobs for virginia and he's talking with the person who's 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 that he is guilty of a felony but the reason why i change the hypothetical to involve a larger quid is because the implications of having something out from official action mean that it can be sold and that it's lawful to be sold and when you change the trout fishing to a trip to hawaii it becomes more nefarious and the message that it sends to citizens i doubt that's the point you see what exactly what the chief justice asked what's the lower limit in the government but tell me right now what if you're going to say ten thousand dollars ok i feel quite differently about this if you will say an afternoon of trout fishing or saturn i feel quite differently it's pretty hard to see the conduct being honest if you example campaign contributions and put it up somewhere but i didn't think that was the government's position it's not what is the government's position what 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 acquitted if you say that i'll feel differently about the case it's tempting justice buyer but i'm not going to do exactly the same for the corruption of laws oh turn the types of quits but that's now fire you do need to run this through all the elements of the offense i think we're petitioners is saying and i think some of the court's hypotheticals suggesting the only thing that really we you could possibly do to remedy this issue is to shrink the definition of official action with no text to a basis into a one you know really i think any commonsense basis in the way that government and then you tell me that's why i asked you at the beginning and use in order to be you say are going to push back and then you complain about their definitions if i thought their definition was so perfect i wouldn't have asked you and it's it's exactly you do what you tell me how to do this and i'm not you say it sends a terrible message i'm not in the business of sending messages in a case 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 expressed my concern so i dissented in in citizens united so whatever that said there but they may be there but the point is the one i raised at the beginning that every single one of us has raised we're worried about because like any other organization the prosecutors too can be overly zealous that can happen and so we need some protection on both sides even though the line won't be perfect and it will fail to catch some crooks and it will so i mean i understand and i want to know your view and it doesn't leave it helps a little but not a lot to say well if that's true specific i want to know what your view is as to the language we write in discussing the law well i don't think you and i agree on where the line should be just as prior and so i can't write language that is going to satisfy you aren't even satisfied with petitioners reject the government submission which is that when the governor calls his secretary of health and says take the meeting with my benefactor he doesn't disclose it's his benefactor take the meeting so that that person can have the preferential opportunity that other citizens who do not pay will have to make his case before you i think that is official action petitioner says it's an artificial 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 that a fall back position for the government is when you have an indisputed official action such as will the universities  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  his benefactors interests with respect to that decision that constitutes the crime of bribery given the difficulty that we're having in settling on what these words in the statute mean there is a ar which this court has previously construed in both mccormick and evans to be perfectly valid upon the proof of a quid pro quo when the official asserts that his action will be controlled by a thing of value that he has received and 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 hobbs act we're also talking about the on a service a statute which this court in skilling just six years ago here in the difficulty of coming up with clear enough instructions suggests that the caution the court showed at that point was ill advised but i think it would be absolutely stunning if this court said that bribery and corruption laws which have been on the books since the beginning of this nation and have been consistently enacted by congress to combat both federal state and local kurdish again the stunning to say that the government has given this number workable stand where we have given you a workable standard it's the standard that comes from this court's nine hundred fourteen decision in birdsong 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's happened 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 if you up the is that what you're saying i think what i'm trying to say justice kennedy is that it's going to be extremely difficult for anyone to really believe that you could buy a governor's position on a multi million dollar tax support for an afternoon of trout fishing and that's why those cases don't get brought no one thinks about them it's not really even clear there is a and i ask you a narrower question mr driven so one of the official acts here i'll just read it to you it's allowing johnny williams to invite individuals important to star scientific space next to exclusive events at the governor's mansion yes that's essentially hosting a party and allowing mr williams to invite some people and why does that why is that an official act in your view so justice kagan it wasn't hosting an official party we're talking about  of two events one was a product launch hosted at the governor's mansion where the government is basically giving his credibility to a brand new product and the invitations were critical to johnny williams is playing to sign up the universities to do the studies he got  here's i guess i mean i guess my question is this the the official at the statute the definition requires that there be some particular matter cause suit proceeding or controversy correct yes and if i understand the theory of this case the matter suit cause proceed in a controversy here is the attempt to get the university of virginia to do clinical studies of this product is that correct 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 different 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 i mean you know 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 attempts to get the university of virginia to do something that they wouldn't have done otherwise so justice kagan what the crime was here was the governor accepting things of value in return for being influenced in taking official actions to legitimize promote and secure research studies for and not a black and stars product that said supplemental j fourteen it then alleges that he would do this and opportunities arose in the course of his official actions and because he's the governor and he has a tremendous amount of influence throughout the government he appoints all the board of visitors of d c you in a heap sets the budget they know that he's an important guy he has lots of opportunities to do this in different ways over time and if you look at the pattern of what he did directing people to meet with stars representatives arranging a dance at the mansion in which starr could bring together its chosen guest list of the doctors who it wanted to influence with the star people who were trying to influence it the governor is taking every step he can do short of saying to uva do the studies which his chief counsel told him would be inappropriate and wasn't going to 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 the just a sort of my oars opinion in ghanim in the second circuit validated and it was cited skilling as a perfectly valid theory of corruption and therefore the individual official acts really form 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 all together 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 the petitioner could win if you agree with me on the sufficiency issue is you conclude that jury instructions must exempt certain types of official actions like directing your secretary of health to take a meeting which is a very kind of significant event in the life of a cabinet member and a governor were 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 can complete the sentence in the way that the indictment structured the crime in this case the official acts were exemplary they were proved and the jury could properly find them thank you thank you counsel mr fr minutes remaining thank you mr chief justice i have three days basic points i would like to make first i'd like to start out with the government's argument that a lot of the problems with it's the or saw it by the quid pro quo requirement well in fact the gratuity statute the federal gratuity statute has the exact same official act requirement but no quid pro quo requirement at all so what that means is that if you take somebody to a fancy lunch with i can't remember the name of the bottle of wine you mentioned justice prior but you took them to that  lunch to thank them for referring you to a meeting with a mid level staffer even if there was no suggestion at all that you were going to do anything other than call that staff and say hey can you take a meeting with this guy here mountain exercise your independent judgment that would be a violation of the federal indeed under the government's broad theory that anything within the range of official duties counts that means that if you took the person out of that lunch as thanks for giving you a tour of the capitol building you would likewise have violated the federal statute because there there is no quid because the federal statute is meant to prohibit thanking somebody for giving you an official act and so an official act is in fact a tour of the capitol building or a meeting with a staffer then you have in fact violated the federal statute when you take them to lunch as a thanks for that particular and second point justice for trying to figure out the right for before mutilation the first point i'd like to make is if we can't figure out a proper verbal formulation that i think there are some very serious vagueness problems with the sta very it's birdsall look i can i read the brown commission report i've read the model penal code i've read all these efforts to get language and i've looked at the present statute and i think i can limit that out because the statute itself seems to cover things like voting in contracts but it's also true that a person who tries to influence those things is committed bribery i think that's correct and now my problem is with birdsall and how do we write those words so that they do catch people who are doing this dishonestly without as i've said five times allowing the government the freedom to go and do these proceeding and those are actual decisions that the government makes the government as a whole as a sovereign and 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 official power you have the one dishes you're actually trying to influence the outcome and it really is just a meeting yes but that reflects the fact that these brought in big stack each are not comprehensive codes of ethical conduct there are lots of other statutes that would prohibit precisely what you are suggesting justice time he arranges 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 your 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 whose 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 prohibits you from taking any action not just official action but any action in violation of your official duties so i think that mike or the any less well excuse me why are they any  less what you're saying is that holding a meeting taking a phone call having a party is not illegal that that is something that you're entitled to do so why would all those statutes any less than they may well be in certain circumstances but i thing that the ones that are simply saying for example the civil service that is that simply say you can't take anything from anybody who is a covered person that's not bake it just says that you can't take anything from anybody who's in your job most federal government officials are very familiar with that that's why you really just don't take it from anyone the problem here is that we had a state machine that was much less stringent than the federal were seen and the government wanted to use n our records reflect that this rose your one hundred one argument before the court you want to be second person to reach that rare milestone this century i distinctly recall your first argument in january of one nine hundred eighty nine throughout your career you have consistently advocated positions on behalf of the united states in an exemplary manner 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 solicitor general's office and as an officer of this court we look forward to hearing from you many more times thank you the case is submitted