On Monday, the Supreme Court of the United States issued its ruling in the case involving former Virginia Gov. Bob McDonnell, who—with his wife Maureen—had been convicted of public corruption charges.
Whether the government chooses to retry the McDonnells remains to be seen, but it seems doubtful.
The Supreme Court, in a unanimous opinion written by Chief Justice John Roberts, overturned the conviction, holding that the government’s definition of what constitutes an “official act” for purposes of the bribery statute was too broad and would raise significant constitutional concerns.
Whether the government chooses to retry the McDonnells remains to be seen, but it seems doubtful.
McDonnell’s Financial Trouble
When McDonnell became governor in January 2010, he and his wife Maureen were having financial difficulty. They had tens of thousands of dollars in credit card debt, and he and his sister were losing about $40,000 a year on two rental properties that were heavily mortgaged.
In 2011 and 2012, McDonnell and his wife accepted more than $175,000 in cash, vacations, luxury goods, and undocumented loans from Jonnie Williams, the CEO of Star Scientific, a Virginia company that produced a nutritional supplement called Anatabloc—which was made from a compound found in tobacco.
Williams wanted the Food and Drug Administration to approve Anatabloc as a pharmaceutical, which would obviously have been very profitable for him. The clinical trials the FDA requires are very expensive, and Williams was hoping that one or more of Virginia’s state medical schools would conduct these studies.
It is highly unlikely, of course, that Williams, who did not know the McDonnells prior to his becoming governor, would ever have given these things to McDonnell and his wife if McDonnell had not been governor. And there is little doubt that Williams was hoping—and probably expecting—that McDonnell would help him, which to some extent he did.
In May 2011, McDonnell spoke to William Hazel, Virginia’s secretary of health and human resources, about Anatabloc and requested that Hazel send one of his deputies to meet with Williams to talk about Anatabloc.
On another occasion, he forwarded a letter to Hazel from Williams suggesting that the medical schools could use an attached protocol to initiate clinical trials of Anatabloc. McDonnell also hosted a couple of events with health researchers and allowed Williams to help set the guest list, which included researchers Williams was lobbying.
At one of those receptions, Williams gave the researchers checks totaling $200,000 to help defray the costs of preparing research grant applications. Several months later, after Williams complained to Maureen about the fact that the researchers had not applied for the grants, she sent an email to the governor’s chief counsel informing him that the governor wanted to know what was going on with these studies. And six days later, McDonnell sent an email to his chief counsel saying that he wanted to speak to him about the Anatabloc issue, although they never ended up doing so.
Finally, in March 2012, the governor met with the Virginia secretary of administration who oversaw the state’s health care plan. During the meeting, McDonnell told the secretary that Anatabloc worked well for him and that it might work well for state employees. He then asked the secretary to meet with Star Scientific personnel. Nothing ever came of this, however, because Virginia’s health care plan does not cover nutritional supplements.
McDonnell and his wife were subsequently charged by federal prosecutors with violating public corruption laws.
The theory underlying the charges were that McDonnell had accepted bribes in the form of loans and gifts from Williams in exchange for committing or agreeing to commit an “official act,” which is defined under federal law 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, or in such official’s place of trust or profit.
On Sept. 4, 2014, following a five-week trial, they were convicted. McDonnell was subsequently sentenced to two years in prison, and Maureen was sentenced to 12 months and one day in prison. Their convictions were affirmed on appeal, but then the Supreme Court decided to hear the case.
At the heart of every public corruption case is a quid pro quo arrangement. The “quid” refers to the thing of value that the person paying the bribe gives to the public official, and the “quo” is an “official act” that the public official agrees to provide in exchange for the bribe. Corrupt quid pro quo arrangements often take place behind closed doors, so establishing a clear link between a payment and some official action is rarely easy.
Was It Illegal?
There was no question that what McDonnell did was unseemly, but was it illegal?
At the time, Virginia had very lax ethics rules, which allowed politicians to accept unlimited gifts and loans, although those rules have since been revised to place strict limits on gifts and loans to elected officials.
An additional question was whether the instructions given to the jury that convicted McDonnell were overbroad, potentially subjecting politicians and those who support them to criminal prosecution for engaging in conduct that constitutes the warp and woof of everyday political activity.
What Constitutes an Official Act?
The government argued, and the trial court agreed and so instructed the jury, that an “official act” could constitute virtually any activity undertaken by a public official, including arranging meetings, contacting other public officials, or hosting events, concerning virtually any subject, including broad policy objectives such as a state’s economic development.
McDonnell’s attorneys argued that under previous case law, “official acts” were limited to instances in which the public official either exercised actual government power—by, say, voting on an issue, appropriating government funds, or awarding a government contract—or put a thumb on the scale by pressuring other decision-makers to exercise actual governmental power in a way that benefitted the person paying the bribe, and that in this case, there was no evidence that McDonnell made any governmental decisions that benefitted Williams or that he pressured other government decision-makers to compromise their independent judgment in order to benefit Williams.
“Taking into account the text of the statute, the precedents of this court, and the constitutional concerns raised by” McDonnell, the Supreme Court, without opining on whether a jury could have convicted McDonnell, had it been properly instructed, sided with the former governor and “adopt[ed] a more bounded interpretation of ‘official act.’” “Under that interpretation,” Roberts continued, “setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”
The Supreme Court’s Conclusion
The Supreme Court concluded that broad policy objectives—such as economic development—are not naturally described as the kinds of matters that are “pending” before a public official or something that may be brought “by law” before him, and that “the pertinent ‘question, matter, cause, suit, proceeding or controversy’ must be more focused and concrete.”
Instead, federal law requires “that the public official must make a decision or take an action on that question or matter, or agree to do so.”
Setting up a meeting, hosting an event, contacting an official, or expressing support for a product would not qualify, the Supreme Court concluded, as an official act so long as the person engaging in such activity does not intend to exert pressure on or provide advice to another public official in a way that compromises that official’s independent judgment.
Most significantly, the Supreme Court concluded that adopting the government’s “expansive interpretation of ‘official act’ would raise significant constitutional concerns.” Federal law prohibits quid pro quo corruption; however, as Roberts noted, under the government’s view, “nearly anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and nearly anything a public official does—from arranging a meeting to inviting a guest to an event—counts as a quo.”
Moreover, Roberts continued:
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. 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.
Roberts noted, of course, that the facts of the McDonnell case did not involve your typical politician-constituent interaction, but added 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.”
The Supreme Court concluded that the jury had not been properly instructed as to the law governing this case and that “it may have convicted Gove. McDonnell for conduct that is not unlawful.” It will now be up to the government to decide whether to retry McDonnell. It seems unlikely though.
Perhaps it will now be harder for the government to prove quid pro quo corruption, but the clarity that the Supreme Court has now provided, unanimously no less, should be welcome news for those who believe in representative government.
While it is certainly true that politicians are invariably grateful for gifts and contributions that they receive and that those who give them often get special access to decision-makers as a result, as the Supreme Court stated in 2013 in McCutcheon v. FEC, “government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.”
Indeed, the Supreme Court continued, ingratiation and access “embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”