March 9, 2021

O'Melveny tried to stifle anti-corruption laws

       If you're a government official, you control or influence valuable decisions. For example, a zoning change, a business permit -- decisions that people want to buy. The problem is that United States has all these laws to stop you from selling that power. What you need is a step-by-step manual that explains what to say, and how to say it, so you can sell your authority without violating those laws. 

       O'Melveny recently wrote a brief that effectively serves as such a manual. It explains how to conduct your transaction in a way that makes it seem like you were merely "soliciting funds in a conversation in which (he's) talking about what policies he favors[.]" Remember, it's form over substance, a matter of how you say it. As the U.S. Attorney explains in 16:59 of this video, politicians are clever in how they word such transactions and if you follow O'Melveny's brief -- you can be too. Of course I'm being sarcastic. 

       Before moving on I want to make it clear that I'm not commenting on this particular case. Apparently, what happened was that a former Cincinnati Bengals football player turned developer became "frustrated with 'being shaken down' while working on city development projects." So he went undercover with the FBI, leading to numerous arrests. I'm glad FBI agents are out there fighting to stop the United States from turning into a third world country, where bribes to government officials are routine. But beyond that superficial reporting, I don't know much about this particular case's facts, or how it will turn out once there's a jury trial.

       Rather, I'm commenting on the method O'Melveny proposes for analyzing such cases in general. Had O'Melveny succeeded, they would have gotten the case thrown out at the motion to dismiss stage, a very early stage in litigation. The government probably wouldn't even bother to prosecute such cases anymore. Why waste time prosecuting a case that will immediately get thrown out? If the judge had adopted O'Melveny's analysis, all a government official would have to do is follow the technique outlined in O'Melveny's brief, and they could sell their powers and get away with it scot free under this new "I was merely soliciting funds while talking about the policies I favored" doctrine. I think it would have severely weakened anti-corruption laws.

       But we don't need to worry about that, because the judge rejected O'Melveny's brief. See in particular pages 27-35

       [Addendum: O'Melveny is trying again in a case involving corruption in New York.]

O'Melveny, omm, Michael R. Dreeben