SCOTUS Scrutiny of Prosecutors May Not Save McDonnell

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By Jessica DaSilva

May 9 — Despite an apparent wariness toward overcriminalization and prosecutorial overreach, the U.S. Supreme Court is unlikely to overturn former Virginia Gov. Bob McDonnell's corruption conviction, according to a law professor.

Although the justices' dogged questioning of the government's request for a broad interpretation of the federal bribery statute during oral argument in the case indicates a certain caution regarding prosecutorial discretion, McDonnell's behavior clearly fell within the bribery statute, Bennett Gershman, a professor at the Elisabeth Haub School of Law at Pace Law School, told Bloomberg BNA.

Fish and Chemical Weapons

The court recently put a halt to two attempts at broad applications of criminal statutes by prosecutors. In Yates v. United States, 2015 BL 48342 (2015), prosecutors argued fish could be considered “tangible objects” protected from destruction under the Sarbanes-Oxley Act (96 CrL 576, 3/4/15). In Bond v. United States, 2014 BL 151637 (2014), prosecutors used a chemical weapons statute against a woman who tried to poison her husband's mistress (95 CrL 312, 6/4/14).

Even though McDonnell's actions fell squarely within the elements of a clearly written bribery statute, Gershman, who specializes in constitutional law and prosecutorial misconduct, said that the court's pushback likely indicates increased wariness regarding prosecutorial overreach stemming from cases like Yates and Bond.

“[Prosecutors] will push as far and as hard as they can go, and sometimes that does involve misreading or an over-reading of a criminal statute,” Gershman said. “That might result in wrongful prosecutions and the courts have to be watchful for that.”

But No Overreach Here

However, Gershman said prosecutors in McDonnell's case properly tried him under the bribery statute.

In 2014, a jury found that McDonnell and his wife accepted “multiple five-figure payments and loans, expensive getaways, shopping trips, golf outings, and a Rolex watch” from Star Scientific Chief Executive Officer Jonnie R. Williams Sr. in exchange for efforts to assist Star Scientific “in securing state university testing of a dietary supplement,” the U.S. Court of Appeals for the Fourth Circuit explained in affirming the conviction (97 CrL 503, 7/15/15).

“When you're taking Rolex watches and Ferraris and low-interest loans and then doing favors for that person, it raises a question of corruption,” Gershman said. “This wasn't politics as usual.”

Professor Steven Schwinn, from John Marshall Law School, told Bloomberg BNA the argument basically turns on the definition of what constitutes “official action.” The court seemed to search for words from both parties, but neither could supply language that the court found satisfactory.

Schwinn said he wasn't sure how the court could define the phrase without some vagueness, but the court might run up against its own brush with separation of powers by redefining a statute Congress may have left intentionally broad.

At the same time, he said the government attorneys were likely asking for too much leeway.

“They’re doing their job,” Schwinn said. “They’re arguing for the broadest definition possible, and I can’t fault them for that. Are they overreaching? I think, yeah, probably. We’ll see what the court has to say.”

‘Misguided Understanding.'

But Gershman said he disagreed in the need to define “official conduct.” He said the bribery statute had enough elements to be sufficiently clear, even without a further definition of that phrase.

During the government's oral argument, Justice Stephen G. Breyer explained his concern regarding unchecked prosecutorial power violating the separation of powers (99 CrL 127, 5/4/16).

“The Department of Justice in the Executive Branch becomes the ultimate arbiter of how public officials are behaving in the United States—state, local, and national,” Breyer said. “And as you describe it, for better or for worse, it puts at risk behavior that is common—particularly when the quid is a lunch or a baseball ticket—throughout this country.”

But Gershman said that Breyer's concerns were misplaced.

“The fear is that we're going to be transforming bribery into a weapon to put politicians and political favors at risk,” Gershman said. “I think it's a misguided understanding by the court as to the crime of bribery and how prosecutors try to use the crime.”

He maintained that prosecutors acted appropriately in McDonnell's case, but said he believed they overreached in bribery cases against former Alabama Gov. Don Siegelman (D), the late Sen. Ted Stevens (R-Alaska), and former Sen. John Edwards (D-N.C.) .

Those cases would have been more appropriate for the court's review, Gershman said; however, he said the political climate in the past 10 years has seen more high-profile cases involving prosecutorial misconduct. That has resulted in all courts scrutinizing prosecutors' actions to ensure they're acting responsibly, he said.

Yet that doesn't mean the court will rule against the government in this case, Gershman added. He explained that while the court might clarify the bribery statute, Gershman said he would be surprised if the court ruled in favor of McDonnell.

In all crimes, prosecutors must decide based on a spectrum of behavior whether certain actions are criminal, he continued.

“You do have to put some trust in the executive branch and in prosecutors to act in good faith and perform their duties responsibly,” he said.

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To contact the editor responsible for this story: C. Reilly Larson at