Gijs de Bra is a JURIST Assistant Editor and SCOTUS special correspondent, and a 2L at Cornell Law School.

When, if ever, does a person “corruptly” solicit or offer a gift with intent to influence government action? That question kept Colleen Sinzdak, counsel for the US government, busy for almost all of her argument before the US Supreme Court earlier today. Her response: a person behaves corruptly when they know they are doing wrong. There were frowns, frustrations and laughs as the court pushed unrelentingly for specificity on what counts as “wrong” and clarity on whether innocent gifts would be free from prosecution under the government’s theory.

I attended oral arguments in the case Snyder v. United States. This case asks the Supreme Court to decide whether 18 U.S.C. § 666(a)(1)(B) applies to gratuities as well as bribes. The party briefs mostly focused on the word “rewarded” in the statute. But the court today also seemed intent on finally finding a definition for corruption, the age-old concept implicated in the statute’s criminalization of a government official “corruptly” soliciting anything of value from another party with an intent to be influenced or rewarded. Justice Alito admitted as much: ”[W]e didn’t really take this case just to decide whether this particular case was correctly decided. We took it to explore the meaning of this provision.”

I previously wrote a JURIST explainer about the case, describing the background, each side’s arguments, and the broader implications. Here I describe how arguments proceeded, the feel of the room and visual cues from the Justices.

Before the argument

The atmosphere outside the courthouse today was calm. This term my JURIST colleague Marissa Zupancic has attended Supreme Court oral arguments in cases about former US President Donald Trump’s disqualification and the abortion drug mifepristone, and on those occasions she saw protests and security measures. Today was different, with no commotion whatsoever. To be sure, there is much at stake in this case; it just does not have the same political posture.

There was still a long line outside the building, though, so having press access for JURIST was a privilege. As I traversed the sunlit square in front of the courthouse and waited outside the entrance, a family joined me. It happened to be petitioner James Snyder’s family. James Snyder, the former mayor of Portage Indiana accused of having criminally solicited a payment in this case, seemed calm and upbeat. The group took pictures and made jokes. We even briefly chatted. If they were nervous—and the potential prison sentence facing Snyder in this case would give them every right to be—they did not show it.

With less media attention also came an emptier press section and thus a great seat. I had a full view of the bench, counsel and the audience. Justice Thomas was notably not present at today’s oral argument, with no reason given. As always, the court clerk swore in new members of the Supreme Court bar, Justices’ clerks prepared the bench with documents and coffee cups, and court marshals shushed journalists who were unable to keep silent in the minutes before arguments began. The atmosphere in the room intensified as everyone waited for the Justices to enter.

The calm outside the courthouse and inside the courtroom seemed to predict the storm that was about to unravel.

Snyder’s arguments

Lisa Blatt, counsel for Snyder, opened by arguing that the government’s definition of “corruptly” was too broad. The government’s brief mentioned evil and immoral, and Ms. Blatt seized upon those terms to warn the court of juries convicting people for offering gifts that are simply immoral in the eyes of a jury. She offered pornography as an example. A broad and unclear definition of “corruptly”, she argued, would chill gift-giving to public officials as well as to employees of private entities covered by the statute.

Justice Kagan asked if the required mental state in the statute helps to alleviate that concern. Ms. Blatt argued that “corruptly” is too standardless to ensure that people are not prosecuted for innocent gifts that may appear suspicious. When pressed further, she asserted that a clearer mental state like knowledge or intent would not solve the problem because criminalizing everyday gifts to officials and employees is “unheard of” and “ahistorical.” She emphasized that Congress removed the text referring to gratuities from Section 666 in the 1986 amendment.

That opened the door to more questions from Justice Sotomayor. She asked: if Congress wanted to criminalize bribery only, why would it first copy the text from 18 U.S.C. § 201(c) (gratuities for federal officials) and then replace it with different language, instead of copying the text from Section 201(b) (bribery of federal officials)? She then asked several follow-up questions, barely letting Ms. Blatt finish her responses. Justice Sotomayor also looked around the bench while speaking, her frustration with Ms. Blatt’s argument growing every minute.

When Ms. Blatt finally got a chance to change course, she met Justice Jackson. Ms. Blatt argued that Section 666 would be unique in punishing bribes and gratuities equally with a maximum sentence of 10 years. Justice Jackson objected, pointing to 18 U.S.C. § 215, a statute the government relies on for its similar language, scope and timing of amendment. It too has a single maximum sentence, and Jackson posited that its legislative history supports its application to gratuities.

Ms. Blatt fought back, denouncing that part of the legislative history as “a footnote.” That seemed to catch Justice Jackson by surprise, who frowned and looked up and down at her documents as Ms. Blatt elaborated. It also intrigued Justice Kavanaugh, who stroked his chin throughout this exchange.

Ms. Blatt made another impression a little later. Justice Sotomayor had interposed that the so-called nexus requirement—the gratuity must be related to an official act or a business transaction—together with the minimum threshold of $5,000 protects innocent gift-givers from being prosecuted. Ms. Blatt countered that the threshold of $5,000 was easily met, referring to her plastic surgeon’s services. That caused laughter on the bench and in the audience, but Ms. Blatt remained serious and raised her voice to quiet the room. She said “I’m not even joking” and stressed that gifts to nurses could be criminal.

Justice Kagan observed that Section 666’s problem is simply that it applies to many officials and employees. But Ms. Blatt disagreed and elicited more laughter when she argued that the government’s definitions of corruptly fail to draw a clear line between permissible and illegal gifts:

[T]hey’ve said six different ways what [a jury instruction of “corruptly”] would look like. . . . [T]he restaurant example alone, I don’t know where it is. I’m pretty sure Chipotle would be okay, Inn at Little Washington [a Michelin Star restaurant] wouldn’t, but ask them about the Cheesecake Factory.

“Well, I’m not going to ask them about the Cheesecake Factory,” Justice Gorsuch responded. (He actually did, much to everyone’s amusement: “Some people would say oh, I wouldn’t go to the Cheesecake Factory, that would look bad.”).

Justice Alito appeared disengaged during Ms. Blatt’s argument. He spent much time leaning back in his chair, eyes closed, in a meditative state. He was saving himself for the government’s argument.

And for Supreme Court enthusiasts: the order in which Chief Justice Roberts asks the Justices at the end if they have any questions makes more sense in person. He does so in order of seniority, starting with the Justices closest to him and then moving outwards.

The government’s arguments

Ms. Sinzdak had been closely tracking Ms. Blatt’s argument, a concentrated look on her face, and now it was her turn. She opened by stressing the government’s interest in prosecuting illegal gratuities paid to localities and organizations to guard against improper spending of federal funds. She argued that the petitioner’s position contradicts Section 666’s text and that it clearly prohibits Snyder’s actions.

After Ms. Sinzdak finished her introduction, the Justices were eager to ask her about the meaning of “corruptly.” She defined it as consciousness, understanding, or knowledge of wrongdoing. Asked to translate that into a viable jury instruction, she proposed to have the judge describe what counts as wrongdoing in a particular case. In this case, she argued, the jury instruction correctly described as wrongful asking a company for money after illicitly directing public funds to that company.

The Justices, not satisfied with that answer, pressed Ms. Sinzdak with hypotheticals, such as a $100 Starbucks gift card and the wealthy paying for better access to medical care. She stood her ground and said that wrongdoing would be clear in the vast majority of cases that the government prosecutes, as opposed to the “fringe cases” the Justices raised. Corruption is a spectrum, with obvious cases on either side. But counsel and the bench struggled to meet in the middle.

Then Justice Sotomayor came forward with a compromise. What if we define wrongful as unlawful under state or local law? Ms. Sinzdak said she could “live with that,” so long as the definition also included immoral conduct. But that opened the door to further questions. Justice Gorsuch asked how an average person would know they are committing a sin. He was okay with Justice Sotomayor’s compromise because it would make ignorance of the law a valid defense, meaning that a person is not guilty if they don’t know that the gratuity is forbidden under law.

But Ms. Sinzdak refused to accept that narrower construction. She bravely withstood laughter and criticism from the Justices. When she argued that wrongdoing applies not just to accepting a gratuity but also the official act that preceded it, Justice Kavanaugh responded that “that defeats your whole theory.” And when she implied that an act is wrongful if it signals that the government is for sale, four Justices jumped in at the same time.

Justice Alito, no longer meditating, raised an important rule-of-law issue. He asked Ms. Sinzdak whether Section 666 criminalizes campaign contributions, as a kind of gratuity. He noted that contributions are protected by the First Amendment (as political speech) and that under McCormick, they cannot form the basis of a bribery conviction unless there is a quid pro quo: a clear exchange for an official act.

Ms. Sinzdak answered that Section 666 applies to campaign contributions on its face, but that the First Amendment imposes an additional quid-pro-quo requirement. In other words, a person cannot be prosecuted for contributing to someone’s campaign to thank them after an official act, assuming there was no prior agreement.

Justice Jackson ended with the observation that this case does not present the issue of what corruptly means, and Ms. Sinzdak accepted that olive branch. She argued that the court does not need to define “corruptly” to resolve this case. Yet earlier, Justice Sotomayor had commented that she “understand[s] it’s not before the Court, but it really is” because any prohibition on gratuities would be vague otherwise.

Overall, the argument was an animated discussion between hard-to-satisfy Justices and an advocate eager to alleviate their concerns. So eager, in fact, that she interrupted the Justices as much as they interrupted her. “Counsel, please,” Justice Gorsuch protested; “Let me finish,” said Justice Kavanaugh. Their frustration could be felt in the room, with Justice Alito shaking his head in big circles and Justice Gorsuch massaging his temples with his glasses. It was almost as if they wanted to be on the government’s side, but were finding it difficult to be.

Rebuttal

“At least we should get a 9-0 remand today,” Ms. Blatt confidently said as she opened her rebuttal. She continued:

[E]verything that we heard today was not charged to the jury. It is truly—as a former government lawyer—baffling how someone could just say that [the definition of corruptly] was not contested, that this [gratuity] was wrongful. No citation [to the record]. Of course it was contested. The whole argument was this was a legitimate consulting agreement . . . . I feel like we’re in a Senate room drafting language [of a statute]. . . . “Corruptly” as a consciousness of wrongdoing has never been the mens rea for bribery.

She maintained her position that the government failed to draw a clear line and that it could prosecute even innocent gifts, like offering someone a seat on an Uber ride.

Closing remarks

Justices get much attention in articles about the Supreme Court. But Ms. Blatt and Ms. Sinzdak deserve all the praise for their advocacy today. Their arguments embodied the US’s adversary process—Ms. Sinzdak energetically defended her position with remarkable stamina, and Ms. Blatt persuasively reduced her opponent’s arguments to “gibberish” and “absurd.” It was a spectacle and an inspiration for every law student interested in oral advocacy.

On the other hand, some Justices were not persuaded by either side. Justices Sotomayor and Jackson identified problems with the lines drawn by both parties—Snyder’s too narrow, the government’s too unclear.

When you are meters away from the Justices, you can see them frowning, laughing and gesturing. You better understand their concerns about arguments that counsel makes. You can sense when they are engaged, and when they are not. You see them interacting with each other, as well as with counsel and the audience. The experience is much more holistic in person than when you listen to the audio, let alone read a transcript. I would recommend that everyone attend a Supreme Court argument at some point, if you can.

The court will issue its ruling in this case before the end of June. If it addresses the meaning of “corruptly” and/or “rewarded,” my prediction is that the court will construe them narrowly. That would be consistent with their questioning today and the overall trend I described in my explainer. In any event, Snyder is likely to get a remand for a new trial or appeal.