The U.S. Supreme Court on Monday unanimously reversed former Virginia Gov. Bob McDonnell’s 11 corruption convictions.
The high court vacated the unanimous finding of the Richmond-based 4th U.S. Circuit Court of Appeals, which had rejected McDonnell’s arguments and upheld the guilty verdicts.
“There is no doubt that this case is distasteful; it may be worse than that,” Chief Justice John G. Roberts Jr., wrote in delivering the opinion for the court. “But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns.
“It is instead with the broader legal implications of the governments’ boundless interpretation of the federal bribery statute. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this court.”
Roberts concluded: “The judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion.”
The U.S. Attorney’s Office declined comment Monday morning on the Supreme Court’s ruling.
Roberts said that if the appeals court determines that there is sufficient evidence for a jury to convict McDonnell of committing or agreeing to commit an “official act,” his case may be set for a new trial. If the appeals court instead determines that the evidence is insufficient, the charges against him must be dismissed.
“We express no view on that question.”
Andrew McBride, another former federal prosecutor now in private practice said, “I do not believe the government has the evidence to meet the new standard. I think retrial is very unlikely.”
A Richmond jury convicted Virginia’s 71st governor and his wife, Maureen, in September 2014 for accepting more than $177,000 in gifts and loans from Jonnie R. Williams Sr., then-CEO of Star Scientific, in exchange for promoting the company’s dietary supplement, Anatabloc.
In his appeal McDonnell’s lawyers urged the Supreme Court to reject what they termed federal prosecutors’ “sweeping” theory of corruption law.
It is a felony under federal law for an official to agree to take “official action” in exchange for something of value.
McDonnell argued that referring someone to other decision makers in government in order to promote Antabloc was not the sort of action the law was intended to prohibit — that “official action” is limited to exercising actual governmental power, threatening to do so, or pressuring others to do so and that a jury must be so instructed.
U.S. Rep. Morgan Griffith, R-Salem, said he was pleased with Monday’s ruling, but urged Cong…
“The government openly advocates a legal rule that would make a felon of every official at every level of government — from a Cabinet secretary to a janitor — who accepts travel in exchange for public appearances, who has lunch with a lobbyist when both know the lobbyist will pick up the check, who trades campaign contributions for a few minutes of time, or who cleans one classroom with special care because its teacher brings him gift cards,” McDonnell’s lawyers wrote in one of his appeal briefs.
Before McDonnell’s case was argued before the Supreme Court, some analysts thought his case suffered a blow with the February death of Justice Antonin Scalia. That left the high court with four justices nominated by Republican presidents and four nominated by Democratic presidents.
McBride said the decision, “suggests a compromise between those justices who would declare ‘honest devices’ fraud unconstitutionally vague and those who wish to define and narrow the concept. No doubt in my mind the absence of Justice Scalia’s strong voice to strike down ‘honest services’ played a role in this compromise.”
On April 27, when the Supreme Court heard McDonnell’s appeal of his 11 corruption convictions, the justices questioned lawyers about what constitutes “official action” by public officials and expressed concern about giving unbridled power to prosecutors who are probing corruption.
That day, a sometimes frustrated Justice Stephen Breyer, who was nominated by President Bill Clinton, looked for a definition that would catch wrongdoers but not give unrestrained power to prosecutors who might bring “ridiculous” cases.
The 28-page opinion noted that the 4th Circuit found at least three issues in the case: whether researchers at state universities would initiate a study of Anatabloc; whether the Tobacco Indemnification and Community Revitalization Commission would allocate grant money for a study; or whether the health insurance plan for state employees would include Anatabloc as a covered drug.
However, the justices went on to write that the question remains whether merely setting up a meeting, hosting an event, or calling another official qualifies as a decision or action on any of those three questions or matters.
The court said a public official is not required to actually make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy,” it is enough the official agrees to do so. The agreement need not be explicit nor must the official perform the “official act” so long as he or she agrees to do so.
“Setting up a meeting, hosting an event, or calling an official (or agreeing to do so) merely to talk about a research study or to gather additional information, however, does not qualify as a decision or action on the pending question of whether to initiate the study,” wrote the court.
Simply expressing support for the research study does not qualify as a decision or action on the study so long as the public official does not intend to exert pressure on another official or provide advice knowing or intending the advice to form the basis for an “official act.”
“Otherwise, if every action somehow related to the research study were an ‘official act,’ the requirement that the public official make a decision or take an action on that study, or agree to do so, would be meaningless.”
That is not to say setting up a meeting, for example, is always an innocent act or irrelevant in cases such as McDonnell’s.
“In sum, an ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy.’ The ‘question, matter, cause, suit, proceeding or controversy’ must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee,” wrote the justices.
“It must also be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official,” the court added.
“Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) – without more – does not fit that definition of ‘official act.’”
“Today’s ruling makes it even more difficult to protect our democracy from attempts by officeholders to peddle political access and influence to the highest bidder,” said Tara Malloy, with the Campaign Legal Center. “This entire case could have been avoided if Virginia had taken the necessary and vital steps to prohibit the receipt of huge gifts from people who have business before the government.
“Given today’s ruling, states must make it a priority to protect and preserve the integrity of our democracy by passing strong gift laws and campaign finance laws, both of which are designed to prevent bribery schemes from hatching in the first place.”
McBride agreed. “As I have said from the start, the issue here is the lack of any real gift laws for Virginia officials, similar to the federal restrictions on gifts ... and further spelled out by ethics rulings by the Office of Government Ethics.
“Federal employees cannot accept gifts worth more than $20 — or gifts that add up to more than $50 a year — without advance permission or some exception. The real remedy here would be to impeach McDonnell under a Virginia gift statute like the federal law.”
In arguments to the justices in April, Deputy Solicitor General Michael Dreeben said McDonnell was asking the court to carve out from the concept of an “official act,” things such as meetings, phone calls and events that provide somebody with access to the government. That, warned Dreeben, was “a recipe for corruption.”
But, McBride said, “You can say ‘selling access’ or you can say ‘making referrals and recommendations.’ If McDonnell thought that his actions were good for Virginia business and they yielded him some benefits — campaign contributions would be a little cleaner— that is classic lobbying.”
Former first lady Maureen McDonnell was initially convicted on nine counts, but U.S. District Judge James Spencer, who presided over the McDonnells’ trial, later tossed out one of her convictions on a charge of obstruction of justice.
Spencer sentenced the former governor, a Republican, to two years in prison. He sentenced Maureen McDonnell to a year and a day. Both have been out pending the outcome of their appeals.
Last October the Richmond-based appeals court put Maureen McDonnell’s case on hold pending the outcome of her husband’s case in the Supreme Court.
William Burck of Quinn Emanuel Urquhart & Sullivan LLP, counsel to Maureen McDonnell, said Monday that the Supreme Court’s ruling means the former first lady’s convictions also should be overturned.
“We are extremely gratified by the Supreme Court’s unanimous decision vacating the conviction of former Governor Bob McDonnell,” Burck said.
“This decision applies no less to our client Maureen McDonnell and requires that her conviction immediately be tossed out as well, which we are confident the prosecutors must agree with.
“Mrs. McDonnell, like her husband, was wrongfully convicted. We thank the Supreme Court for unanimously bringing justice back into the picture for the McDonnells.”