Late last week the United States Supreme Court agreed to take up former Virginia Governor Bob McDonnell’s appeal from his 2014 conviction in a widely followed public corruption prosecution. The outcome of this appeal could have far-reaching consequences for the way in which public officials conduct business and for the types of public corruption prosecutions that can be brought by the United States Justice Department.
In September, 2014, a jury sitting in the United States District Court in Richmond, Virginia convicted Governor McDonnell and his wife on corruption charges as the result of their acceptance of more than $175,000 in gifts and loans from Jonnie R. Williams, Sr., then the head of Star Scientific, in exchange for promoting the company’s dietary supplement.[1] In that trial, the jury was instructed that the Governor could be found guilty of the charges – both the honest services counts and the Hobbs Act counts – if he accepted something of value in exchange for agreeing to perform “official actions.” The Court defined “official actions” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity.”[2] The trial judge added that “official actions” can also include those actions that a public official would “customarily perform” in addition to those duties assigned him by law and that he need not have actual or final authority over the end result sought by the payor if the payor reasonably believed that the public official had some influence, power or authority over a means to that end. Finally, the trial court also advised the jury that the illegal act can be merely one step in a series of steps to achieve the desired end.
The Fourth Circuit Court of Appeals reviewed the trial court’s jury instructions and found no fault with them. Moreover, the court declined to limit the definition and allowed that “official actions” need not be defined by statute, written rule or regulation, but may include any action that the public servant customarily performs, so long as it relates to a “pending question. . . . , matter, cause, suit, proceeding or controversy.”[3] In sum, the Court of Appeals gave a green light to the Government’s far-reaching approach to the question of what constitutes an “official action.” For a fuller discussion of the Court of Appeals decision, please see our analysis here.
Governor McDonnell’s attorneys, as well as the 60 former Attorneys General and the host of former federal officials filing amicus briefs, argue that the trial court’s definition of “official actions” is entirely too broad. They seek to limit the definition to those matters that involve “an exercise of actual governmental power, either directly (for example, voting on legislation or awarding a contract) or indirectly (such as pressuring another official to vote a certain way or grant a contract to a particular party).”[4] Short of that definition, the parties argue, a public official has no reliable gauge with which to distinguish between “permissible expressions of gratitude or legitimate grants of political access, on the one hand, and official actions subject to criminal prosecution, on the other.”[5] As we have written before, the crux of Governor McDonnell’s case turns on the definition of “official act” in the context of the federal bribery statute and as applied in the Governor’s case in the context of the honest services fraud statute and the Hobbs Act.
The issue framed in this appeal could have far-reaching consequences for the way in which public officials conduct official business, the manner in which they interact with the public, how they take in campaign contributions and the level of access they may allow. Any line the Supreme Court draws may fundamentally alter the way in which our Government functions.
The Court’s ruling may also have an impact in at least one high profile public corruption matter now awaiting trial. New Jersey Senator Robert Menendez was indicted in April of 2015 in the District of New Jersey.[6] And, like Governor McDonnell, he argues in challenges to the charges that his actions are nothing more than zealous advocacy on behalf of a friend.
The McDonnell case is scheduled to be argued before the Supreme Court in April, and a decision could be handed down in the middle of a heated federal election campaign season.
[1] As we wrote in our analysis on July 16, 2015:
Governor McDonnell was convicted under two basic legal theories. First, the Government alleged that he had violated the honest-services wire fraud statute, 18 U.S.C. §§ 1343 and 1346. This statute requires that the Government prove a scheme or artifice to defraud another, that is the public, of the “intangible right of honest services.” United States v. McDonnell, [792 F.3d 478, 504 (4th Cir. 2015)]. Through its ruling in Skilling v. United States, 561 U.S. 358 (2010), the Supreme Court limited violations of § 1346 to bribery and kickback schemes. Bribery was the basis of the Government’s first prosecution theory in the McDonnell case. Thus, the prosecutors were required to prove that the Governor allowed himself to be influenced in the performance of an “official act” in return for some item of value.
The Government also charged McDonnell with Hobbs Act extortion under 18 U.S.C. § 1951(a). Here prosecutors alleged that the Governor improperly obtained property “under color of official right.” And the Supreme Court, as the [Fourth Circuit] pointed out, has defined extortion by a public official as “the rough equivalent of what we would now describe as ‘taking a bribe.’” McDonnell, [792 F.3d at 505] (quoting Evans v. United States, 504 U.S. 255, 260, 268 (1992)). Thus, the [Fourth Circuit] pointed out, “prosecutions for extortion under color of official right, like prosecutions under other bribery-related statutes, required proof of a quid pro quo.” Id. Here, again, prosecutors had to demonstrate that the Governor obtained something of value in return for the performance of some “official act.”
See, here.
[2] In defining “official actions” the trial court relied on the definition of that term found in 18, U.S.C., § 201(a)(3).
[3] McDonnell, 674 F.3d at 509, fn. 19 (quoting United States v. Jefferson, 674 F.3d 332, 353 (4th Cir. 2010).
[4] Brief of Former Federal Officials As Amici Curiae in Support of Petitioner, at 6-7.
