The U.S. Supreme Court vacated former Gov. Bob McDonnell’s conviction on corruption charges Monday morning, likely saving the governor from a 2-year federal prison sentence and letting politicians around the country breathe a sigh of relief.
The decision was unanimous, and Chief Justice John Roberts wrote the 33-page opinion. The court vacated and remanded a decision that rose out of the U.S. District Court in Richmond and had been affirmed by the 4th Circuit Court of Appeals.
The court agreed with the core of McDonnell’s defense, saying the trial jury, and prosecutors, relied on an overly broad definition of the “official acts” needed to prove a qui-pro-quo bribery scheme. Justices left it to the 4th Circuit to decide whether prosecutors have enough evidence to retry the governor under a new, more narrow, definition laid out by the high court, but experts said a retrial seems unlikely.
Not only would the 4th Circuit have to allow another trial, federal prosecutors would have to take up the case with a higher bar for conviction. U.S. Attorney for the Eastern District of Virginia said in a statement Monday that his office is reviewing the decision, and that he had no further comment.
A new trial would be, “a risky undertaking for the Department of Justice,” according to Chuck James, former prosecutor who has followed the case but is not involved with it.
In an emailed statement, McDonnell said this is “a day in which my family and I rejoice and give thanks.”
“It is my hope that this matter will soon be over and that my family and I can begin to rebuild our lives.” McDonnell said.
The nut of the government’s case against McDonnell, and his wife Maureen, was this: In taking some $177,000 in gifts and loans from businessman Jonnie Williams, and then setting meetings that Williams sought to gain legitimacy for a controversial dietary supplement, the McDonnells engaged in a quid-pro-quo that amounted to bribery. Williams struck an immunity deal and testified for prosecutors that he was trying to buy the McDonnell’s help.
The 2014 trial was a soap opera, with the McDonnell’s allegedly broken marriage front and center for the defense, which tried to show that first lady Maureen McDonnell, not the former governor, had the closest ties to Williams. As the defense tried to justify the family’s acceptance of vacations, clothes, a Rolex watch, a borrowed Ferrari and $120,000 in loans with only handwritten scrawls for paperwork, jurors heard from a love letter that McDonnell wrote his wife in an effort to save their marriage.
The case featured substantial quid. There were always questions, though, about the quo. The governor’s attorneys argued that the meetings, which came to little, and invitations to events at the governor’s mansion never rose to a level that could justify the charges against the former first couple.
In appeals attorney Noel Francisco’s words, the governor never “put his thumb on the scales” for Williams.
In response, the Supreme Court narrowed the vague legal definition of the “official act” needed to prove bribery. McDonnell’s attorneys argued consistently that U.S. District Judge James Spencer gave an overly broad definition of the term in his jury instructions, and the high court called those instructions “erroneous” and “significantly overinclusive.”
“To qualify as an ‘official act,’ the public official must make a decision or take an action on that question or matter, or agree to do so,” the opinion states. “Setting up a meeting, talking to another official, or organizing an event — without more — does not fit that definition of ‘official act.'”
Justices signaled this line of thinking during arguments in April, seeming skeptical of the government’s case and probing the line between acceptable political tribute and outright bribery. They peppered attorneys for both sides with hypothetical fishing trips and innocent lunches paid for by everyday constituents,
“For better or worse, it puts at risk behavior that is common,” Justice Stephen Breyer said at the time. “A recipe for giving the Department of Justice and prosecutors enormous power over elected officials.”
That thinking was reflected in Monday’s opinion.
“The government’s expansive interpretation of ‘official act’ would raise significant constitutional concerns,” the opinion states. “Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. … The government’s position could cast a pall of potential prosecution over these relationships.”
This was the very argument the McDonnells, and a slew of politicos and attorneys who backed their case, made: That conviction would turn modern politics on its head. Roberts, during oral arguments and again in the opinion, noted the agreement of past White House counsel for presidents from Reagan to Obama, all of whom joined an amicus brief backing McDonnell’s case.
Deputy U.S. Solicitor General Michael Dreeben argued in April that accepting this argument would endorse a “pay to play theory of government.”
University of Mary Washington Political Science Professor Stephen J. Farnsworth called Monday’s decision “a nation-wide green light for donors seeking assistance for public officials, and for public officials willing to provide favors.”
“As long as the politician is careful not to offer too much direct assistance for the cash, the mutual back-scratching can continue,” Farnsworth said via email. “Anyone worried they would be the next McDonnell can rest easy today – and can keep collecting the checks.”
Quentin Kidd, who heads the Wason Center for Public Policy at Christopher Newport University, said much the same.
“The (Supreme Court’s) ruling is a total repudiation of the prosecutor’s case, and a near total acceptance of the McDonnell defense,” Kidd said via email. “In Virginia, it has the practical effect of saying that the way of politics in Virginia is OK. In other words, it’s OK to take loads of cash and other gifts from someone who is clearly angling for something, just so long as you don’t actually do anything that falls under the yet-to-be defined, but certainly more narrow, definition of an official act.”
Before McDonnell’s indictment, elected officials could accept unlimited gifts, provided they disclosed them to the public. The legislature changed that law, applying various gift caps, in response to the case. The General Assembly did not change Virginia campaign finance laws, which allow unlimited donations from people, political groups and corporations.
It could be difficult, politically, to unwind the new gift rules. But state Sen. Bill Stanley, R-Moneta, said Monday that the case’s outcome “will make us look more closely at what we’ve done and make adjustments where necessary.”
Del. Todd Gilbert, who rode herd on three sessions worth of ethics rewrites for the House Republican majority, said the changes weren’t made for legal issues, but to restore public confidence.
“I don’t see, or hear, any calls to revisit that,” Gilbert said.
A number of government advocates criticized Monday’s court decision, but it left in place in place key pieces of U.S. public corruption law: the honest services statute and the Hobbs Act. McDonnell’s team had argued that both are unconstitutionally vague. With the new interpretation of the key term “official act” now in place, Roberts wrote that the court “declines to invalidate those statutes under the facts here.”
The court also agreed that, in taking what they did from Williams, the McDonnells strayed, and it issued a tacit warning to other politicians.
“There is no doubt that this case is distasteful; it may be worse than that,” Roberts wrote. “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. 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.”
In his statement, McDonnell thanked his legal team, those who filed amicus briefs on his behalf and people who stood by him “through this time of great uncertainty.
“From the outset, I strongly asserted my innocence before God and under the law,” McDonnell said. “I have not, and would not, betray the sacred trust the people of Virginia bestowed upon me during 22 years in elected office.”
McDonnell said countless people have reached out to him since this scandal broke in 2013, and that these “multiple acts of kindness have become the new tapestry of my life, and have given me a vivid and indelible example of Jesus’ admonition to live by the Golden Rule.”
Long time friend Janet Kelly, who was McDonnell’s secretary of the commonwealth, said something similar when asked whether the former governor might attempt a return to elected life.
“I’ll let the governor say that, but … I would be surprised if he did,” she said.
Going from the governor’s office, where change is made on the macro level, to a life of deeper one-on-one interactions has brought a new richness to McDonnell’s life, she said.
“Getting to see the day-to-day individual side I think has been – I think he’s been surprised by joy in that regard,” she said.
Fain can be reached by phone at 757-525-1759.
