SALEM — In the wake of a unanimous decision by the U.S. Supreme Court to vacate a corruption conviction against former Virginia Gov. Bob McDonnell, legal experts say federal prosecutors in Oregon face a narrowed scope in influence-peddling cases like the one involving John Kitzhaber.
Kitzhaber has been under federal investigation for a scandal involving his fiancee, Bend resident Cylvia Hayes, who worked as a paid environmental consultant while advising the former governor on environmental policy.
Legal experts widely interpreted the Supreme Court decision announced Monday to send McDonnell’s conviction to a lower court as creating a tougher path for prosecutors when charging public officials with corruption.
Kitzhaber’s case roughly parallels McDonnell’s, and observers say the ruling requires prosecutors to show Kitzhaber took tangible actions to help groups that were paying Hayes in exchange for the business she received.
“The court narrowed the concern of what is the potential ask for the basis of the bribery conviction,” said Brendan Fischer, associate counsel with the Washington, D.C.-based government watchdog Campaign Legal Center. “The question was (is) what the governor did enough” to be convicted.
McDonnell and his wife were convicted in a corruption trial for receiving gifts, luxury car rides and other favors from a businessman trying to influence state policy in Virginia to help his business.
The EO Media Group reported in January 2015 that Hayes was paid $118,000 for communications work for a group that helped push for renewable policies, including the low-carbon fuel standard in Oregon, a biofuels policy that lawmakers approved in February of that year and Gov. Kate Brown signed into law.
The outlet reported it was unclear specifically what Hayes did for the group while she was receiving the money and also gaining an outsize role within Kitzhaber’s administration during his third term.
Kitzhaber and Hayes have maintained that they’ve done nothing wrong and have declined to comment on the case since Kitzhaber resigned and the federal investigation started in February 2015. They’ve recently begun emerging back into the public eye after months of silence.
Attorneys representing Kitzhaber and Hayes could not be reached for comment Tuesday. The U.S. Attorney’s Office in Oregon declined to comment on the investigation.
Democratic leaders called on Kitzhaber to resign in 2015, shortly after he took the office for the fourth time, after months of reports that Hayes had benefited from her relationship with the governor.
After Kitzhaber was re-elected, Hayes shifted to working for nonprofits that were advocating for public policies related to clean energy, while she was advising Kitzhaber on energy policies.
Then-U.S. Attorney Amanda Marshall, who has since resigned amid a scandal of her own, issued subpoenas seeking documents related to Kitzhaber and Hayes from state agencies. The investigation is ongoing.
In the Supreme Court ruling, Chief Justice John Roberts wrote the court worried that federal prosecutors would expand the reach of government if McDonnell’s conviction was upheld. The court determined that while McDonnell sought to help his benefactor by contacting state officials and holding a meeting at the governor’s mansion, those weren’t prosecutable acts of corruption.
“Setting up a meeting, talking to another official, or organizing an event — without more — does not fit that definition of “official act,” that could lead to charges according to the law McDonnell was convicted under, Roberts wrote.
The court left open the possibility for attorneys to retry the case, and Roberts called McDonnell’s relationship with the businessman who showered the governor and family with gifts “tawdry.”
Tung Yin, a professor of law at Lewis & Clark Law School in Portland and a former white-collar-criminal defense attorney, said it’s difficult to say how much the Kitzhaber and Hayes case could be affected by the ruling. It depends what evidence prosecutors and the defense have, he said.
“These third parties are hiring Ms. Hayes for these consulting contracts, and maybe they’re real contracts (or) maybe it’s just giving her money because of her access to the governor,” Yin said. “Is he doing stuff to help these third parties? And when we say doing stuff, that’s really what the McDonnell case is about: What is the stuff, if anything, that’s being done?”
Fischer added he believes the ruling makes strong ethics and campaign-finance laws more important.
“This decision really underscores the need for strong state gift and ethics laws and strong state campaign finance laws,” Fischer said.
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