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April 27 — Former Virginia Governor Bob McDonnell's 2014 corruption conviction seemed likely to be overturned after oral argument at the U.S. Supreme Court April 27.
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 CEO Jonnie R. Williams Sr. in exchange for efforts to assist Williams' Virginia company “in securing state university testing of a dietary supplement,” the U.S. Court of Appeals for the Fourth Circuit explained in affirming the conviction.
But in convicting McDonnell based on “the most routine political activities,” like “arranging meetings, asking questions, and attending events,” the “Government has put every federal, state, and local official nationwide in its prosecutorial crosshairs,” McDonnell said in his Supreme Court brief.
Several justices across the ideological spectrum—including Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Stephen G. Breyer—seemed to agree.
All seemed concerned that such a broad application of the corruption statutes would give prosecutors too much power over elected officials.
To “give that kind of power to a criminal prosecutor, who is virtually uncontrollable, is dangerous,” Breyer said.
The critical issue is whether McDonnell's actions were “official actions” for purposes of the corruption statutes—here, honest-services fraud under 18 U.S.C. §§1343 and 1349 and the Hobbs Act at 18 U.S.C. § 1951—Jones Day's Noel Francisco, Washington, arguing for McDonnell, told the justices.
The “official actions” here included setting up meetings and events for Williams, who wanted Virginia universities to initiate testing on his company's new dietary supplement.
But that's the kind of thing that politicians do everyday—set up meetings with independent decision makers, Francisco said. Elected officials only “cross the line” when they “attempt to influence” those decision makers, he said.
Here, McDonnell never put his “thumb on the scale,” Francisco said.
Access—as opposed to influence—isn't corruption, Francisco said, invoking the court's controversial campaign finance decision Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010).
Kennedy, however, suggested that Francisco's “attempt to influence” theory was itself too broad, in that it could criminalize a Senator writing a letter to an agency asking that it take a look at her constituent's case.
Several former White House counsels who served presidents ranging from Ronald Reagan to Barack Obama filed an amicus brief in the case, saying that too broad of a definition of corruption could cripple elected officials' ability to serve their constituents, Roberts told Michael Dreeben of the Justice Department, Washington, who argued in favor of upholding the conviction.
It's extraordinary that these people would agree on anything, Roberts quipped, but they agree on the drastic effects this case could have.
Dreeben—who April 27 became the second person this century to argue 100 times before the high court—said that the fact that juries have to find corruption “beyond a reasonable doubt” provides some protection to everyday, innocuous actions.
But that “limiting principle” wasn't taken well by the justices.
We should tell the Senators, “ ‘don't worry, the jury has to be convinced beyond a reasonable doubt, and that's tough?' ” Kennedy asked Dreeben incredulously.
Breyer added that allowing prosecutors to become arbiters of how local, state and federal officials behave would have “dangerous” separation of powers implications.
There needs to be protections on both sides—from corrupt public officials and from overly zealous prosecutors—even if the test isn't perfect and doesn't catch all the “crooks,” Breyer told Dreeben.
After Justices Samuel A. Alito Jr. and Elena Kagan attempted to find, through hypotheticals, the line that would provide those protections, Roberts suggested that it might be an insurmountable task.
Are the corruption statutes unconstitutionally vague? Roberts wondered.
Dreeben said no, a line could be drawn. But he said McDonnell's “categorical carve-out” for access would create a “pay-to-play” form of government.
Under McDonnell's theory, “I could take money” to set up a meeting with the Justice Department, so long as I didn't seek to influence the outcome of the meeting, Dreeben said.
That's a “recipe for corruption,” and sends a terrible message to the public, Dreeben said.
When asked by Justice Ruth Bader Ginsburg whether that was correct—that Dreeben could accept money for setting up a meeting without running afoul of the corruption statutes—Francisco admitted that, yes, that might be the case.
But other laws would prohibit such conduct, Francisco added.
The oral argument was the last of the Supreme Court's 2015 term.
Although McDonnell was sentenced to two years in prison, he was at the April 27 argument due to an August 31 stay of his sentence from the Supreme Court.
A 4-4 split in the case would uphold McDonnell's conviction. A decision is expected by the end of June.
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Full text of the transcript at http://src.bna.com/etf.
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