Supreme Court Unanimously Overturns Bob McDonnell Conviction

The Supreme Court at its best and therefore its most frustrating.

Bob McDonnell Maureen McDonnell

A short-handed Supreme Court issued a surprising and unanimous rebuke to the prosecution of former Virginia Governor Bob McDonnell.

POLITICO‘s Josh Gerstein:

A unanimous Supreme Court has overturned the corruption convictions of former Virginia Gov. Bob McDonnell, ruling that federal prosecutors relied on a ‘boundless’ definition of the kinds of acts that could lead politicians to face criminal charges.

The decision from the eight-justice court could make it tougher for prosecutors to prove corruption cases against politicians in cases where there is no proof of an explicit agreement linking a campaign donation or gift to a contract, grant or vote.

The court’s opinion, written by Chief Justice John Roberts, rejected the government’s position that simply agreeing to meet with someone on account of such largesse could be enough to constitute an official act that could trigger a corruption conviction.

“There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute,” Roberts wrote. “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.”

The justices set forth a straightforward rule: “Setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.'”

In addition, the chief justice warned that accepting the government’s stance in the case could chill all sorts of routine interactions between politicians and their supporters.

“Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm,” Roberts wrote.

“The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse,” the chief justice added.

[…]

“None of this, of course, is to suggest that the facts of this case typify normal political interaction between public officials and their constituents. Far from it. But the Government’s legal interpretation is not confined to cases involving extravagant gifts or large sums of money and we cannot construe a criminal statute on the assumption that the Government will ‘use it responsibly,'” Roberts wrote.

Lydia Wheeler of The Hill adds:

In appealing his conviction, McDonnell challenged the jury instructions specifically. He claimed that the district court misstated the law and the sufficiency of the evidence against him.

Because those errors occurred, the justices said the jury might have made a mistake.

“Because the jury was not correctly instructed on the meaning of an ‘official act,’ it may have convicted Gov. McDonnell for conduct that is not unlawful,” Roberts wrote in the decision. “For that reason, we cannot conclude that the errors in the jury instruction were ‘harmless beyond a reasonable doubt.’ “

[…]

The government argued that McDonnell took meetings, hosted events at the governor’s mansion and contacted staff to help Williams secure independent testing for a new tobacco-based diet supplement called Antabloc. In return, Williams showered him and Maureen with gifts that included $15,000 for their daughter’s wedding reception, the use of Williams’s Ferrari and a Rolex watch.

But the justices said arranging a meeting or hosting an event doesn’t mean McDonnell agreed to help Williams.

“The jury may have disbelieved that testimony or found other evidence that Governor McDonnell agreed to exert pressure on those officials to initiate the research studies or add Antabloc to the state health plan, but it is also possible the jury convicted Governor McDonnell without finding that he agreed to make a decisions or take an action on a properly defined ‘question, matter, cause, suit proceeding or controversy,'” their decision said.

This decision is the Supreme Court at its best, and therefore its most frustrating.

McDonnell clearly abused his office.  Quite obviously, taking large donations and turning around and doing favors for the donors as the chief executive of a state is vulgar and unseemly. It’s the definition of corruption.  But it probably wasn’t illegal.

The Chief Justice’s opinion recognizes the vulgarity of McDonnell’s actions and nonetheless sees past the case in controversy to understand the precedent that letting the prosecution stand would set. We don’t want prosecutors stretching the bounds of the law to go after people whose actions they dislike. Nor do we want to write criminal law after the fact, punishing actions that we think should have been against the law but weren’t at the time. Beyond that, as Roberts rightly notes, we don’t want to chill legitimate constituent services on the part of our elected officials.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mister Bluster says:

    The court’s opinion, written by Chief Justice John Roberts, rejected the government’s position…

    Wait! What? Isn’t the Supreme Court part of the government too?
    Oh yeah…separation of powers, checks and balances and all that.

    Independence Hall, Philadelphia 1787
    Doctor FRANKLIN observed, that two modes of choosing the Judges had been mentioned, to wit, by the Legislature, and by the Executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practised in Scotland. He then, in a brief and entertaining manner, related a Scotch mode, in which the nomination proceeded from the lawyers, who always selected the ablest of the profession, in order to get rid of him, and share his practice among themselves. It was here, he said, the interest of the electors to make the best choice, which should always be made the case if possible.
    http://teachingamericanhistory.org/convention/debates/0605-2/

  2. EddieInCA says:

    Awesome. So bribery is now legal.

    Check.

    So awesome.

  3. michael reynolds says:

    I never liked this case. It smelled of overreach.

  4. gVOR08 says:

    @EddieInCA: That’s what Doug said,

    McDonnell clearly abused his office. Quite obviously, taking large donations and turning around and doing favors for the donors as the chief executive of a state is vulgar and unseemly. It’s the definition of corruption. But it probably wasn’t illegal.

    Emphasis mine.

    Apparently you can exchange large favors for large donations as long as no one is silly enough to write down a quid pro quo anywhere it could be produced as evidence. And we can’t stop large donations because freeedommm! or something.

    Doug, if this is legal should we maybe change the law? Maybe something closer to the Caesar’s wife standard.

  5. DrDaveT says:

    But the Government’s legal interpretation is not confined to cases involving extravagant gifts or large sums of money

    I haven’t followed the details on this — did the lower court really rule in such a way as would apply even in the absence of bribes? Is that why SCOTUS overturned it?

    *facepalm*

  6. James Joyner says:

    @gVOR08: IANAL but my understanding of the law here is that McDonnell was prohibited from performing official acts in exchange for consideration but SCOTUS has ruled that his favors didn’t rise to the level of official acts. Had he funneled state contracts to the donor or vetoed a bill that the donor was lobbying against, he’d have broken the law. But simply using the prestige of the office to help arrange meetings isn’t an “official act.”

    I’m not opposed to tightening the law here but don’t know how you’d tailor it to not preclude the sort of ordinary constituent service that’s part and parcel of representative government.

  7. JKB says:

    But the goal of this “prosecution” was not a conviction that would stick, but rather to open the way for a Democratic governor in VA who could tilt the state for Hillary. That they achieved.

    Complete with more Democratic voters (convicted felons) to shoot other Democrats in a twofer since that supports the Democratic parties desire to disarm law-abiding Americans.

  8. MarkedMan says:

    This court is definitely leaving the impression that they will overturn decades of precedent in order to take away protections from poor defendants, but they a employ a much stricter standard in the case of the rich and powerful.

  9. JohnMcC says:

    @MarkedMan: Thumbs up x 1,000! I too immediately thought of the Utah v Streiff ruling.

  10. C. Clavin says:

    Agree with most of what James wrote.
    Note, though, that Roberts wrote in McCutcheon that the only political corruption that can exist is the direct exchange of cash for favors.
    That’s a woefully naive understanding of the possible ways politics can be corrupt.
    The bar for politicians should be getting higher, not lower.

  11. Loviatar says:

    Doug had two posts up a few days ago wondering about the health of our political system and our overall American sensibilities.

    America’s Partisan Divide Is More Unhealthy Than It Has Been In Decades
    Can Americans Unite In Response To Tragedy Anymore?

    My thoughts on why: Anonymity and Accountability, too much of one and not enough of the other.

    We’ve just had an example of the latter.

  12. DrDaveT says:

    @James Joyner:

    I’m not opposed to tightening the law here but don’t know how you’d tailor it to not preclude the sort of ordinary constituent service that’s part and parcel of representative government.

    When we train defense civilians and serving military at our facility, we have to be careful which catered lunch we order, because the good sandwiches are over the legal limit in value, and would constitute an illegal gift to a federal employee.

    Surely governors could squeeze by with a limit that is not nearly that draconian, but still precludes the kind of bribal shower ™ the McDonnells got. At the federal level, “I took the money but I didn’t do any favors” is not any kind of defense.

  13. edmondo says:

    could make it tougher for prosecutors to prove corruption cases against politicians in cases where there is no proof of an explicit agreement linking a campaign donation or gift to a contract, grant or vote.

    This is great news for Hillary Clinton!

  14. gVOR08 says:

    @James Joyner: Sorry I confused you with Doug. Seemed his sort of post.

  15. Hal_10000 says:

    It’s possible to accept two things:

    1) What McDonell did was corrupt.

    2) It was not technically illegal.

    So the Court’s decision was correct. The last thing we want to do in this country is empower prosecutors to say, “Well, technically they didn’t break the law but what they did was bad so …” In this case, it was a rich white politician. The next four million cases would not be. Specificity in law is important. As PJ O’Rourke said, it’s the difference between having a government and having a mom.

  16. DrDaveT says:

    @Hal_10000:

    It was not technically illegal.

    Granting this for the moment, how does this opinion affect the ability of states to pass laws that would make it illegal? Does it leave that open, or does it preemptively establish that merely accepting enormous gifts while in office can’t be made illegal?

  17. James Joyner says:

    @DrDaveT: That’s fair. The federal restrictions are absurdly tight, mostly because basic hospitality items are pretty expensive in the DC metro area.

    @DrDaveT: IANAL but, given that this was a matter of statutory rather than Constitutional interpretation, legislatures would seemingly be free to tighten the laws as you suggested upthread. There are presumably restrictions in terms of separation of powers, vagueness, and the like but this decision doesn’t seem to add new hurdles.