Supreme Court Vacates Conviction of VA Ex-Gov McDonell

The Supreme Court has vacated the conviction of Former Virginia Gov. Robert McDonnell:

A jury in September 2014 found unanimously that McDonnell used the governor’s office to help Jonnie R. Williams Sr., a wealthy dietary supplement company executive, advance his business interests. In exchange, Williams gave McDonnell and his wife, Maureen, $177,000 in loans, luxury vacations and a Rolex watch.

Four months later, a federal judge sentenced McDonnell to two years in prison... McDonnell argued that simply referring a constituent to another state official was not among the “official actions” that are barred by the federal law.

The Supreme Court agreed, ruling that setting up a meeting, talking to another official, or organizing an event, without a more specific action, is not “official action.”


The question presented to the Supreme Court:

Under the federal bribery statute, Hobbs Act, and honest-services fraud statute, 18 U.S.C. §§ 201, 1346, 1951, it is a felony to agree to take "official action" in exchange for money, campaign contributions, or any other thing of value. The question presented is whether "official action" is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.

From the syllabus of the opinion (available here):

© The Government’s expansive interpretation of “official act”would raise significant constitutional concerns. Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. Representative government assumes that public officials will hear from their constituents and act appropriately on their concerns. The Government’s position could cast a pall of potential prosecution over these relationships. This concern is substantial, as recognized by White House counsel from every administration from that of President Reagan to President Obama, as well as two bipartisan groups of former state attorneys general. The Government’s interpretation also raises due process and federalism concerns. Pp. 22–24.

2. Given the Court’s interpretation of “official act,” the District Court’s jury instructions were erroneous, and the jury may have convicted Governor McDonnell for conduct that is not unlawful. Because the errors in the jury instructions are not harmless beyond a reasonable doubt, the Court vacates Governor McDonnell’s convictions. Pp. 24–28

Some background is here and here.

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    Personally, having written legislation ... (3.00 / 1) (#2)
    by Donald from Hawaii on Mon Jun 27, 2016 at 07:37:47 PM EST
    ... to this effect, I've long interpreted the term "official act" as any action or decision which one might undertake in one's own capacity as an elected or appointed public official.

    Because a governor in particular sets the tone for how state government business is to be conducted under his or her administration, I would advocate for a more expansive view of the term to discourage not just bribery and extortion, but also influence peddling, which in my experience appears to be a much more pervasive and intractable problem than the first two.

    While Gov. McDonnell and his wife Maureen might not have been a party to a quid pro quo relationship per se with Star Scientific CEO Jonnie Williams, by which they received a payment, favor or benefit from Williams in direct exchange for an "official act" as defined by SCOTUS, they were most certainly exploiting their unique position as Virginia's "First Couple" to engage in influence peddling.

    Per the Hobbs Act of 1946, it was heretofore enough for a public official who accepted a payment or gift from an individual or corporation to know that said individual / corporation did so with the intent to curry otherwise undue favor, for that public official to be guilty of corruption. And that was certainly the case here with the Gov. McDonnell's relationship with Williams.

    That the Virginia governor and his spouse can accept $175,000 in "gifts" and "personal loans" from a wealthy constituent who's obviously intent on doing business with the Commonwealth, while the governor's office opens doors for that constituent through the arrangement of meetings and introductions with key Commonwealth officials, represents the very antithesis of fair, ethical and honest government.


    The Supreme Court's decision is squarely based (none / 0) (#3)
    by Peter G on Mon Jun 27, 2016 at 09:39:47 PM EST
    on the statutory definition of "official act" written by Congress in the federal bribery law (see subsection (a)(3), narrowly construed (as criminal laws must be) to avoid the due process no-no of vagueness.

    Official Act and Color of Law (5.00 / 1) (#4)
    by Michael Masinter on Tue Jun 28, 2016 at 09:04:09 AM EST
    The Court could have construed official act as equivalent to an act taken under color of law without violating the due process clause, but if that's the breadth congress intended, that's the language it should have used.  In other words, the holding does not forbid Congress from outlawing what the governor did (though it never will), but it does require it to use broader language to do so.  In that sense, the holding is not so much a nod to due process as to traditional limiting principles of statutory construction.

    The Court did not suggest that the law might be (5.00 / 1) (#5)
    by Peter G on Tue Jun 28, 2016 at 02:03:34 PM EST
    unconstitutional under the First Amendment, for instance. But it did suggest that a loose or broad interpretation of the words of the bribery statute it was construing would raise a constitutional problem of vagueness (or possibly overbreadth).

    Fair Description (none / 0) (#7)
    by Michael Masinter on Tue Jun 28, 2016 at 02:55:18 PM EST
    Although the holding and principal discussion rested on traditional statutory construction terms, there was a secondary reference to potential vagueness considerations that reinforced the principal reasoning.  Presumably the absence of any citation to Citizens United and its remarkably narrow theory of corruption was a price for unanimity.

    I very much disagree with that. (2.00 / 1) (#8)
    by Donald from Hawaii on Wed Jun 29, 2016 at 01:12:17 AM EST
    Chief Justice Roberts deliberately narrowed that particular definition of "official act," which was one that had heretofore stood stood for decades. My question now is, why?

    We certainly don't have rogue prosecutors roaming the land, looking to punish altruistic public officials for the mere performance of their duties. Roberts' ostensible premise for doing what he did was nothing but a red herring. And shame on the entire Court for going along for the ride.

    There is absolutely nothing "vague" about what Gov. Bob McDonnell did in this case on behalf of Jonnie Williams. The latter lavished the governor and his wife with $175,000 in gifts and personal loans, and as a result he received equally lavish personal attention from the governor and his staff, special attention which was otherwise entirely undue.

    Now, any Virginia legislator could have arranged those introductions and meetings with key Commonwealth personnel for Williams upon request. That's something I used to do when I worked for House leadership in our state legislature. My bosses and I considered that to be part of my official duties, and I don't have an issue with that practice. Rather, I would note that Williams specifically, deliberately and admittedly focused his efforts on the governor and his wife, and he did so for a very obvious reason.

    As Williams saw it, having the governor on board in support of his product granted his business gubernatorial gravitas in the eyes of Commonwealth officials, and they might be more inclined to look favorably upon providing public support for Williams' tobacco-derived nutritional supplement if they knew that the boss approved.

    Effectively, Williams sought to buy himself an undue special access to the governor's office and his administration, and Bob McDonnell proved himself more than willing to sell it to him.

    Isn't there something inherently wrong with that? The chief justice himself implicitly if sheepishly acknowledged that very point, before deciding that it was far more important to ignore the culture of corruption that stood before him, in order to focus myopically on a specific act called "quid pro quo."

    Just because there was no explicit "official act" performed by Gov. McDonnell, e.g., introducing a bill in the legislature for public funding of the project, etc., that could be tied directly and conclusively to Williams' largesse, that should not deter us from recognizing the corrosive effect of public corruption in this case when we see it. Quite frankly, this was one of the more appalling and obvious instances of influence peddling by a high-ranking public official that we'll likely ever see in our lifetimes.

    With yesterday's ruling, Chief Justice Roberts would now require law enforcement personnel to  not only show that an explicit quid pro quo act of exchange took place in order to prove corruption, but to also produce at trial the selfie that the defendants took of that exchange taking place.

    Roberts might just as well have said that it's now okay for special interests to offer Virginia public officials a cash retainer up front until such time as they're actually needed, because that's pretty much the end result here.

    Our state governments should not the best that some people's money can buy, and special access thereof should not be reserved for the highest bidder. Unfortunately, John Roberts rendered the exactly opposite to be the rule yesterday, rather than the exception.



    Not even close, Donald, to being the most (none / 0) (#9)
    by Mr Natural on Wed Jun 29, 2016 at 06:57:45 AM EST
    appalling examples of influence peddling we'll see in our lifetime.

    Case in point: In other news from the Supreme Court, ex Detroit mayor Kwami Kilpatrick had yet another appeal of his convictions rejected.  Kilpatrick's misdeeds channeled about $700M to his pals.  


    Saves Hillary (1.00 / 1) (#10)
    by thomas rogan on Fri Jul 01, 2016 at 10:59:28 PM EST
    I guess now donations of hundreds of millions in uranium money, foreign country money, etc to the Clinton Foundation also aren't corrupt since there is no "official act".

    Gotta say (none / 0) (#1)
    by CaptHowdy on Mon Jun 27, 2016 at 06:23:34 PM EST
    While I certainly think the guy is probably a crook and what the did and what he took should probably not be legal, his prosecution did have a bit of a Casablanca feel.  That of being shocked SHOCKED that politicians feather their nest.

    Isn't something missing here? (none / 0) (#6)
    by parse on Tue Jun 28, 2016 at 02:54:48 PM EST
    Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. Representative government assumes that public officials will hear from their constituents and act appropriately on their concerns. The Government's position could cast a pall of potential prosecution over these relationships.

    There doesn't seem to be any mention here that the particular constituents in question would be limited to those who had provided financial benefits to the "conscientious public officials" who were arranging the meetings.

    I don't disagree with the finding that an introduction by one state official to another might fall outside the scope of official acts, But the suggestion in the opinion that a statute that made it a case of bribery do so in in cases where the party that received the introduction had paid off the official would preclude elected officials from serving their constituents seems to ignore the fact that they could avoid prosecution by not accepting payments from the people who were seeking introductions.