And if the justices decide to hear an appeal, McDonnell can remain free until the court decides his case, the Supreme Court said in an unsigned order released Monday.
McDonnell was sentenced to serve two years in prison after his conviction on 11 counts of violating federal wire fraud and extortion laws earlier this year.
The rarely granted break from going to prison after an appeals court rejected a request required the vote of five justices. But legal scholars split on what it might signal about the Supreme Court’s intentions.
“It means that five members of the court believed that a grant of review and reversal of the lower court was enough of a possibility that the court should maintain the status quo — McDonnell not in jail,” said Andrew McBride, a former federal prosecutor in Virginia.
“I am frankly not surprised that the court is interested in the case,” McBride said.
McBride and former Virginia Chief Deputy Attorney General Charles E. “Chuck” James Jr. said at least three justices – Clarence Thomas, Anthony M. Kennedy and Antonin Scalia – have already written that they feel one federal law McDonnell was convicted of violating is unfair.
“It’s not safe to say there’s a one-for-one relationship – that because they made this ruling that they’ll grant cert,” said James, using the legal jargon for a decision to hear an appeal.
“It is safe to say there are some heads hanging on the government side today and some better spirits for the defense,” he added.
What concerns the three justices is the federal law on “honest services fraud,” which they’ve held is so vague that it’s impossible for an individual to know if he or she has violated the law.
“Prior precedent suggests Justices Scalia, Kennedy and Thomas could see this case as an opportunity to further define or gut the Honest Services Act,” James said.
Carl Tobias, a law professor at University of Richmond, said McDonnell’s lawyers have been positioning him to raise the issue, as the best way of interesting the high court in his case. And, he said, it’s the first real break McDonnell has received in the federal courts.
But it’s hard to know exactly what the court is thinking because the order itself doesn’t say much of anything, Tobias said.
“There’s no explanation, there’s no vote,” he said.
There’s no way of telling if four justices will agree to look at the case after reviewing McDonnell’s argument for why they should and prosecutors’ arguments for why they should not. And if the court does agree to hear the case, there’s no way of telling if five justices will agree with the former governor or the prosecutors, Tobias said.
Basically, the order means McDonnell will stay out of jail for several months, Tobias said.
His lawyers have a bit more than two months to file a petition asking for a Supreme Court review, and prosecutors would have 30 days after that to reply. There’s no fixed deadline for the court to act to grant review. If it does review the case, McDonnell would remain free for several months more, while both sides prepare their briefs and their rebuttals, and make their legal arguments, and the justices take whatever time they need to form a majority and agree on an opinion.
Juliet S. Sorensen, a professor at Northwestern University’s law school with a special interest in federal corruption cases, said the Supreme Court order’s meaning is simple.
“It signals that the Supreme Court does not view former Governor McDonnell as a flight risk, presumably because he has no criminal history and is a public figure,” she said.
U.S. Solicitor General Donald B. Verrilli Jr. last week told the Supreme Court it should not keep McDonnell out of prison since the former governor’s conviction had already been upheld by appeals court judges and he has not shown the “much more demanding” standard for a Supreme Court review
A three judge panel of the 4th U.S. Circuit Court of Appeals upheld his conviction, and the full court declined to hear the former governor’s request to reconsider that ruling.
The court also rebuffed McDonnell’s request to let him stay out of prison while he appealed to the U.S. Supreme Court.
The appeals court was set to issue an order last week starting the bureaucratic process of deciding where the former governor would do time and when he would have to report to prison, when Chief Justice John Roberts granted a temporary reprieve, asking prosecutors to say why they believed McDonnell should start his sentence now.
McDonnell’s lawyers argued it was likely he would serve the bulk of his sentence before the Supreme Court ruled on any appeal, and that it would be unjust if he did that and the high court overturned his conviction.
Ress can be reached by telephone at 757-247-4535.