Gov. Bob McDonnell’s last chance to avoid prison will be argued Wednesday before the U.S. Supreme Court where many predicted the case was headed following his 11 corruption convictions in September 2014.
McDonnell, sentenced to two years in prison and his wife, Maureen, convicted of nine counts and sentenced to one year an one day, have remained free pending their appeals. Maureen McDonnell’s case is on hold while her husband’s goes before the high court.
The convictions arose from McDonnell’s acceptance of more than $177,000 in gifts and loans from Jonnie R. Williams Sr., the former CEO of Star Scientific, in exchange for his influence promoting the company's dietary supplement, Anatabloc.
Arguments are set to begin at 10 a.m. and each side will be given 30 minutes. Noel J. Francisco, a Washington lawyer, will argue for McDonnell and Deputy Solicitor General Michael R. Dreeben for the government.
Carl Tobias, a professor at the University of Richmond School of Law, said that because his case is being heard at the end of the court’s current term, the justices will probably issue the written opinion at the end of the term, sometime in late June, with a majority opinion and any concurrences and dissents.
“However, if the justices are split 4-4., the opinion could issue sooner, may be relatively brief and may principally say they are divided,” said Tobias.
A unanimous panel of the Richmond-based 4th U.S. Circuit Court of Appeals upheld the convictions last year. Since the justices agreed to take the case in January, Justice Antonin Scalia has died. With eight justices on the court, a 4-4 tie means the convictions stand.
At issue is the definition of “official action” under federal fraud, bribery, and extortion law.
The high court asks whether "official action" is limited to exercising actual governmental power, threatening to exercise it or pressuring others to use such power and whether the jury must be instructed about such a limit.
McDonnell’s lawyers contend the government has taken too broad interpretation of the law - that the trial evidence showed the five “official acts” McDonnell allegedly took on Williams’ behalf were routine political courtesies such as arranging meetings and attending events and not official acts. The evidence did not show he ever exercised any governmental power, promised to do so, or pressured others to do so, they contend.
"This case marks the first time in our history that a public official has been convicted of corruption despite never agreeing to put a thumb on the scales of any government decision," McDonnell said in his appeal. "Officials routinely arrange meetings for donors, take their calls, politely listen to their ideas, and refer them to aides.
"In criminalizing those everyday acts, the government has put every federal, state and local official nationwide in its prosecutorial cross-hairs. That dramatic expansion of multiple major federal crimes repudiates bedrock principles of constitutional law, centuries of legal history, this court's decisions, the analogous bribery statute for federal officials, and basic common sense," McDonnell argued.
The U.S. solicitor general’s office has asked the justices to affirm the 4th circuit and uphold the convictions.
McDonnell, argues the government, "solicited and secretly accepted personal benefits in exchange for agreeing to perform 'official acts' that fall within the definition federal law has given that term for more than a century.”
Treating McDonnell’s conduct as official action would not make all elected officials potential targets for corruption prosecution for granting access to campaign contributors, the government says.
"In rare bribery cases involving campaign contributions, the jury can be instructed on the distinction. But no such issue arose here, because the bribes in this case were personal loans and luxury goods, not campaign contributions," argues the government.
The government need only prove that McDonnell understood his receipt of personal benefits carried an expectation that some type of official action would be taken – the agreement itself, not any acts, constitutes the crime.
And, in any case, argued the government, the appeals court found that not only did McDonnell have an understanding that he would take official action in exchange for a bribe, but the former governor did so and the evidence was more than sufficient to support his convictions.
Had McDonnell not pursued appeals and gone to prison - factoring in good-time sentence reductions and possible transfer to a halfway house - he might be close to release now.
But, said Michael N. Levy, a Washington lawyer and white-collar defense expert, "If in fact it turns out that he's not guilty of a crime because what he was charged with is not a violation of the law or the reading of the statute is unconstitutional then it would be a shame for anyone to have to spend time in jail if they didn't commit a crime."
"You'll probably be able to get some sense of which justices may be concerned about the breadth of the statute and all the different possible applications of it; there may be other justices asking questions about what they think may be uncovered conduct if the statute is read too narrowly," said Levy.
Levy also believes they will decide the case by June 30. "They will get this opinion done in about two months. I will be surprised if they get this done early because it's a late argument date."
"A number of fairly recent Supreme Court cases that have alleged the application of an over-broad criminal statute . . . have actually been decided on a 9-0 basis, so it's hard to say what the justices are thinking or whether there's going to be a lot of division on the court," said Levy.
He said, "Until we hear the questions and even then that's not a certain predictor, by any means."