Supreme Court Hears Ex-Gov. McDonnell Bribery Case

Reuters reports the Supreme Court seems inclined to toss the bribery conviction for former VA Republican Governor Bob McDonnell (short backgrounder from trial here):

During the one-hour argument, several of the eight justices signaled that McDonnell's acceptance of $177,000 in luxury gifts and sweetheart loans from a businessman seeking to promote a dietary supplement did not constitute a criminal act.

They voiced concern that the broad interpretation of U.S. anti-corruption law used by federal prosecutors could criminalize numerous commonplace actions by politicians.


McDonnell argued:

McDonnell's lawyer Noel Francisco argued the former governor's conduct was no different than what politicians across the United States do on a daily basis when responding to requests from donors and constituents.

On the Justices' positions:

Liberal and conservative justices alike raised concerns about the Justice Department's interpretation of U.S. bribery law. Stephen Breyer described as "dangerous" the "enormous power over elected officials" that federal prosecutors would hold if the court endorsed the Justice Department's position.

Leaning in favor of the conviction:

Sonia Sotomayor, one of the only justices to indicate support for the prosecution, suggested it was reasonable to infer that McDonnell's intent was to help Williams when he accepted money and gifts.

Some justices appeared troubled by the signal a ruling in his favor would send. Ruth Bader Ginsburg appeared alarmed by the idea of officials being able to accept payments to arrange meetings without facing potential prosecution. Officials could simply say "I'll do it for you if you pay me a thousand dollars," she said.

The Supreme Court agreed to hear McDonnell's case after the 4th Circuit appeals court affirmed his conviction. The 4th Circuit opinion is here.

I wonder whether the court's opinion could affect the re-sentencing of former Illinois Governor Rod Blagojevich, who is serving a 14.5 year sentence. I thought the sentence was too harsh when it was imposed. The Supreme Court decided not to hear his case in March. Before that, the 7th Circuit overturned 5 of his convictions, and the Government decided not to retry him on those counts. He is scheduled to re-sentenced on June 30. Blago's lawyer said at the time the Supreme Court denied cert:

We’re not surprised—disappointed,” said defense attorney Sam Adam, Jr, who added that he thought the Court had punted an opportunity to clarify the line between political horse-trading and criminal activity. “The citizenry has a right to know what politicians can and can’t do with campaign contributions, and the Supreme Court missed a prime opportunity to let us, as citizens, know that.”

Adams' comment seems very similar to what three justices said about McDonnell's case today:

Chief Justice John Roberts appeared to favor a broad ruling saying the statutes under which McDonnell was convicted could be unconstitutionally vague because they can cover many different activities.

.... Breyer and Justice Anthony Kennedy said politicians need guidance so they know what conduct potentially could be prosecuted. If the law is interpreted broadly, "political figures will not know what they are supposed to do and what they are not supposed to do," Breyer said.

Blagojevich has already served four years. Even though the Supreme Court declined to overturn his remaining convictions, I think there's ample reason for the judge to reconsider and impose a far lesser sentence in June.

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    I agree, Jeralyn (none / 0) (#1)
    by NYShooter on Wed Apr 27, 2016 at 11:34:55 PM EST
    I've done a lot of business, for myself, and for clients, dealing with Town, County, and State officials. Most of my dealings were primarily real estate related. I often wondered, in my own mind, while certain procedures were taking place, "is what I'm doing legal?"

    I never had a problem with the ethics of what I was doing, I honestly believed my own rhetoric that what I was asking for (zoning changes, variances, density exceptions, etc.) were beneficial to the municipality I was involved with. But, when you're involved in large projects, you can be dealing with the same officials for many months, even years. And, because you become professionally, and, personally familiar over time, certain, seemingly innocuous acts (picking up a lunch tab) could be spun in different, sometimes opposite, ways.

    The short answer to the dilemma judges have to rule on is, "Yes, clear, simple, unambiguous language has to be written into rules that define official corruption." But, that is much, much easier said than done. For anyone interested in delving deeper into what I mean, reflect on this example:

    I'm driving in my car, accompanied by the Planning Board Chairman of a particular, upstate Town. The purpose of the trip is to visually show the Chairman the scope of the proposed project, the roads potentially affected, traffic patterns, entrance and egress suggestions for proposed development, and so on. So far so good, no problem. But, then, a potential conflict enters the conversation.

    The Chairman says to me, "hey, you know, your project isn't too far from a hunting lodge I own." (We were about a half hour+ ride from the Town, and his office.) He continues, "I've been meaning to get up here and check things out before deer season opens." Now, we were about 15 minutes away from his cabin, but it was over 45 minutes away from Town. So, as a courtesy, and a simple act of common sense, I answered, "what the hay, we're so close to your lodge, why don't we shoot on over there and save you almost an hour's ride if you went there from Town?" He quickly accepted my offer.

    We spent approximately an hour and a half, driving to his lodge, driving around his lodge, getting out and walking the property, and doing a few other, equally normal things.

    The Dilemma: Did I (and he) perform an illegal act? A Town official received 90 minutes of non-official service.......at no charge. I had business before his Board, yet those 90 minutes had nothing to do with my application. Was I guilty of indirect bribery in providing him with something of value, and not charging him? Was he guilty of soliciting, and/or receiving the same?

    I'm not going to say how it all ended up. Just wanted to give a simple example that illustrates something that guys like Blago & McDonnell deal with every day they're in office. When is it a crime, and when is it not even worth the time talking about it? At the time, I thought, and said, "Blago got an unnecessarily harsh sentence for something, on another day, might not even have gotten a raised eyebrow." And, while my example is certainly not the same as Blag's, I just wanted to show how things can sometime spin beyond what was intended.

    ... between you and the public official in question, whereby you offer to do something for him in exchange for an undue favor (bribery) agree to do something for him for his favorable disposition (facilitation of bribery), or he expressly requests a favor from you as an inducement to get him to actually do his job (solicitation of a bribe), then you and he more than likely did nothing illegal.

    That said, henceforth please be aware that from the public's perspective, the mere appearance of an ethical impropriety taking place can often be just as damaging to that public's confidence in their government as the actual commission of an impropriety itself.

    While I'm pretty certain you did nothing wrong, given your description, you don't ever want to put yourself in a potential position where you might have to explain your actions to a third party -- particularly when that third party may be a controlling legal authority, such as a local ethics commission or district attorney.

    When I worked for our State House leadership, I was frequently offered "thank you gifts" such as free tickets to concerts or athletic events, bottles of wine, etc., by people who I had assisted when they had business before the state legislature. While I would thank them in return for their thoughtfulness, I turned down each and every one of them because what I had done was part of my job, and I never wanted to give a third party the wrong impression.

    As someone who's both worked in the public sector and wrote related ethics legislation (I am proud to say that I authored the State of Hawaii's Code of Legislative Conduct), I can only offer that we have ethics laws in place for a very good reason. Whenever people run afoul of those laws, it's because they've effectively decided for whatever their reason or rationale to make an exception of themselves, with due regard to the law's application.

    So, it's entirely a judgment call on your part in these sorts of situations. But for your own sake, please exercise sound judgment and err of the side of caution. A very good rule of thumb is to first always ask yourself what you might think or believe, if you saw someone doing exactly what you are contemplating, yet weren't privy to the details and circumstances of the given situation. Then, if you're truly satisfied with your honesty and candor in response to your own question, you may act accordingly.



    Really? (none / 0) (#3)
    by jbindc on Thu Apr 28, 2016 at 05:10:55 AM EST
    McDonnell's lawyer Noel Francisco argued the former governor's conduct was no different than what politicians across the United States do on a daily basis when responding to requests from donors and constituents.

    Wrong, counselor. Most politicians do not accept such outlandish gifts on an ongoing basis to continually push a private product. Most politicians do not have supporters take their wives on shopping sprees, buy their kids golf clubs, or pay for the catering for their daughter's wedding.

    Bet they are sorry every day that Mrs. McDonnell fired the executive chef who blew the whistle on all this graft.

    This conviction needs to stand.

    What the McDonnells did is corrupt and (5.00 / 1) (#6)
    by Peter G on Thu Apr 28, 2016 at 11:35:30 AM EST
    despicable, but not necessarily criminal or even illegal. The explanation that the trial judge gave to the jurors of the bribery law under which he was prosecuted -- and which the court of appeals upheld -- is so overbroad that it criminalizes a lot of ordinary political activity, given the private-contributions-driven system that we have. Just because we would prefer a different system, or don't approve of this guy's conduct, does not justify giving federal prosecutors enough power to selectively target and destroy any big-time politician they don't like.

    The district judge (none / 0) (#9)
    by jbindc on Thu Apr 28, 2016 at 01:59:07 PM EST
    Agreed with defense counsel that the sentence was too harsh and knocked it down.

    A unanimous panel of appeals judges said the lower court was NOT too broad in its analysis, but let him stay out of prison pending appeal.

    What Bob McDonnell did was not a one time deal - it happened over and over.  He has been afforded every benefit.  And so much more went on that was not introduced into evidence. So I'm still hopinghoping the SC will bow to the wisdom of 12 jurors, a Senior District judge, and three appeals court judges and make he and his wife finally pay their debt.


    Official act (none / 0) (#12)
    by Abdul Abulbul Amir on Thu Apr 28, 2016 at 06:14:07 PM EST
    Does this hinge on what is an "official act?"  IMO signing bills, vetoing bills, appointing people to commissions, etc are official acts, but making introductions or promoting products are not.

    The district court (none / 0) (#14)
    by jbindc on Fri Apr 29, 2016 at 12:10:05 PM EST
    Said yes, McDonnell engaged in "official acts".

    The appeals court unanimously agreed, and took twenty one pages (starting on p. 53) to say so, including quoting Supreme Court precedence on the topic.


    But on the other hand, Peter, ... (none / 0) (#11)
    by Donald from Hawaii on Thu Apr 28, 2016 at 03:22:14 PM EST
    ... neither do we want to hamstring those authorities who investigate white-collar crime and prosecute public corruption, to such an extent that we've effectively rendered the system incapable of proper response in the face of obvious bad conduct. We ought to heed the wisdom of the late Nobel laureate Jane Addams, who once observed that the essence of immorality rests in our own tendencies to make exceptions of ourselves.

    And in that regard, related case law in public corruption cases is full of examples in which people made willful exceptions of their own ethical conduct in an attempt to skirt the law and thus justify their actions.

    Further, we need to also consider the reality of our deteriorating political climate. We presently have some very significant and serious issues in our country regarding the matter of public trust in the conduct of our own government and its officials. Ethics law should therefore not be interpreted upon appeal in a moral vacuum, in which public perception of the offending behavior is discounted almost in its entirety.

    And I'm sure you know as well as I do that were the U.S. Supreme Court to overturn former Gov. McDonnell's conviction for corruption on a technicality, he and the GOP would immediately claim a complete exoneration and vindication of his overall public conduct, as was the case with the late and contemptible Sen. Ted Stevens before him, even though the actual evidence shows entirely otherwise.

    (Attorney Gen. Eric Holder's tone-deaf handling of Alaska's VECO scandal, in which his Justice Dept. let numerous state legislators off the legal hook, including Senate President Ben Stevens, after they had been literally caught on camera soliciting and receiving bribes from a petroleum development company in exchange for their vote to approve the construction of a natural gas pipeline, did nothing to instill in Alaska citizens any reason for confidence in their state government institutions. Likewise, many of those same legislators then claimed a full exoneration for themselves, though the implicating videos tell a far different story.)

    As a defense counsel, you're doing your job in making the client's case and I truly respect that. But as someone who's worked in the public sector and has seen the corrosive effect that ethical impropriety has upon the public's trust and participation in our democratic processes and institutions, it is my considered opinion that we're fast approaching a real tipping point with respect to the public's increasing skepticism about the system's inherent fairness.

    And once that negative public opinion reaches critical mass and people react accordingly, whether through the ballot box or heaven forbid in the streets, we may find that the immediate and long-term results of their reaction are very much not to our liking.



    How many other citizens (none / 0) (#4)
    by Steve13209 on Thu Apr 28, 2016 at 09:22:33 AM EST
    get their criminal cases heard by the Supreme Court? Is this the first time this law has been used to convict someone of bribery and it has been challenged?

    If this was not a former Governor, would it ever have gotten this far?

    About 30 criminal convictions per year (none / 0) (#7)
    by Peter G on Thu Apr 28, 2016 at 11:37:54 AM EST
    are reviewed by the Supreme Court. Most involve ordinary criminal defendants whose cases happen to raise an interesting and difficult legal issue.

    Thanks (none / 0) (#8)
    by Steve13209 on Thu Apr 28, 2016 at 01:58:44 PM EST
    "No Such Thing as a Free Rolex," (none / 0) (#13)
    by KeysDan on Fri Apr 29, 2016 at 11:17:46 AM EST
    op ed NYTimes, April 29, by Zephyr Teachout,an Associate Professor at Fordham Law and a NY Congressional candidate.   Professor Teachout makes, in my view, a persuasive case, as she notes, "Not talking about a few ham sandwiches."  Although, the value of the "gratuity," may not be the controlling issue, it seems to spotlight bribery of government officials and the need for reasonable tools to guard against blatant bribery.

    The McDonnells took expensive vactions, a Rolex, $20,000 shopping spree, $15,000 for the daughter's wedding catering, tens of thousands of dollars in private loans.  And more.  

    In exchange, the governor promoted his benefactor's product, a supplement "Anatabloc" hosting an event at the governor's mansion, passing out samples and encouraging Universities to do research on this nostrum.  While not as clumsy or crass as promising five diamonds for five votes, the McDonnells, as the jury found, talked and walked like a duck, and identified them as ducks.  

    The Justices seemed to be leery of prosecutor abuse of public officials; a serious concern.  However, it seems to me that we need to balance this concern with abuse of power by elected officials.  The circumstances of the case should assist in achieving that balance if and when it comes down to it.

    A split decision of the SC, 4/4, would not help the former governor.

    From what I have read, 4-4 does not seem (none / 0) (#15)
    by caseyOR on Fri Apr 29, 2016 at 12:52:54 PM EST
    to be the way the SC is leaning. Sotomayor, if I have read correctly, was the lone justice to voice concern that overturning this conviction could make bribery legal.

    I would be happy to find out that I have read this wrong. So, if a 4-4 split is likely, please let me know.


    Who knows? (none / 0) (#16)
    by jbindc on Fri Apr 29, 2016 at 01:02:19 PM EST
    Sometimes the justices ask questions of positions we do not like (and against how you normally think they'd lean) just to play devil's advocate and clarify the issue in their own mond.

    As jb (none / 0) (#17)
    by KeysDan on Fri Apr 29, 2016 at 02:12:34 PM EST
    notes, the actual leanings of the Court are not definitive based on the questioning.  However, it did appear that the arguments were more favorable to McConnell.

    It seems that Breyer, Kennedy and Roberts were most favorable; Ginsburg, Alito, Kagan, and Sotomayor less so, in differing degrees. Of course, Thomas remained silent. Their thinking crossed the ideological spectrum and, if they do find for McConnell, it would likely cross a broad spectrum in rationale as well.

      My guess is that the common concern of the case was the conversion of too much conduct into crime.  If it is not a 4/4 split, where McConnell heads off to jail, it is also my guess that the Court will grant McConnell's request for a new trial--with restrictions and new interpretations to take back for the new trial, which is likely to make the prosecutor's case more difficult to argue.

    It seems too complicated, important and far-reaching of a case, to me, to let McConnell go scot-free on the basis of the statute being flat out unconstitutional or even constitutionally vague. But, who knows.


    Sorry, got my (5.00 / 1) (#18)
    by KeysDan on Fri Apr 29, 2016 at 02:41:07 PM EST
    unsavory Republicans mixed up.  Not McConnell.  It is McDonnell.