Supreme Court Will Hear Former Va. Governor's Case

For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...

By Jessica DaSilva

Jan. 19 — The U.S. Supreme Court Jan. 15 announced it will hear the appeal from former Virginia Gov. Robert F. McDonnell (R), the first Virginia governor to be convicted of a felony.

The court limited review to the first question presented by the petition, which focuses on the interpretation of the term “official act” and whether its definition is unconstitutionally broad.

David Smith, a white collar crime attorney and partner at Smith & Zimmerman in Alexandria, Va., said he knew the case would make it to the Supreme Court when he co-wrote the amicus curiae brief in the U.S. Court of Appeals for the Fourth Circuit case for the National Association of Criminal Defense Lawyers.

Smith told Bloomberg BNA in a Jan. 19 phone interview that the official acts in question essentially revolve around McDonnell providing access and setting up meetings with other governmental officials.

“If arranging a meeting with a government official was an official act, then virtually every government official is at risk of being indicted at the whim of his local federal prosecutor,” Smith said.

Typically, official acts include actions of the government that affect areas like legislation, budgeting or awarding government contracts, Smith explained. Calling a governor granting access to other public officials into question could upend how the American system of government works, he said.

For example, the law draws no distinction between campaign contributions and personal contributions, Smith said. That is why so many former governors and state attorneys general entered amicus curiae briefs to weigh in on the definition of official acts, he said.

“The crime almost becomes ‘taking a lot of money and favors from a constituent,'” he stated.

Definition of ‘Official Act.'

McDonnell and his wife, Maureen, were convicted for taking bribes from Jonnie R. Williams—a Richmond, Va., businessman—in exchange for official government favors. The case at hand does not involve McDonnell's wife.

Those favors included trying to get Virginia's tobacco commission to fund a study on ingredients in a supplement sold by Williams's company and attempting to add that supplement to the insurance plans for state workers. McDonnell argued the actions were insignificant, but the Fourth Circuit disagreed and affirmed the conviction.

Smith said he ultimately believes the Supreme Court will overturn the conviction. However, he added, the court might take an easier course by saying McDonnell's actions were not official acts, but declining to define what actions constitute official acts.

While Smith said a change in the definition of official acts could be a welcomed one, the justice system—including the Supreme Court—is not the appropriate avenue for that change.

“It opens up a can of worms and makes prosecutors the arbiters of ordinary political conduct,” Smith said. “It should be up to Congress and not up to an assistant U.S. attorney in the Eastern District of Virginia.”

More Than Mere ‘Access.'

In its brief to the court, the Justice Department argued that McDonnell went beyond a general grant of access. Rather, the DOJ says McDonnell accepted lavish gifts and loans in exchange for his “agreement to use his position to influence state officials to dispose of government matters in a manner favorable to Williams.”

To support that point, the government discussed the first Supreme Court case on the issue of official acts, United States v. Birdsall, 233 U.S. 223 (1914). The court found two law enforcement officers guilty of accepting bribes in exchange for official acts in sentencing, even though the officers were two degrees removed from a final sentencing decision.

The government explained that the prosecutors in McDonnell's trial presented sufficient evidence because the standard did not focus on whether McDonnell took official action, but created “an expectation that some type of official action would be taken.”

At the trial, Williams testified that he asked for McDonnell to help him get testing for his dietary supplement at state medical schools—claiming that McDonnell did not actually help Williams is irrelevant, according to the government.

Meeting With Senior Officials

For example, the government pointed to McDonnell's meeting in which he tried to sway senior officials with control of the state employee health benefits plan that Williams's supplement would benefit state employees and asked the officials to meet with the company lobbyist.

The government further explained the difference between campaign contributions and the personal contributions McDonnell accepted, stating that campaign contributors usually share the general beliefs of a candidate so they benefit indirectly when that candidate is elected. Similarly, fund-raising events that provide access to the elected officials are distinguishable from the quid pro quo exchanges for access that McDonnell exchanged with Williams.

“Those distinctions are critical,” the brief states. “It is perfectly appropriate—indeed, protected by the First Amendment—for a candidate to host a fundraiser that costs $1000 to attend. But petitioner goes badly astray when he asserts that this Court's decisions establish ‘a fundamental constitutional right' to demand such a contribution as the price of an official government meeting—much less to auction off influence over government matters.”

The DOJ declined to comment beyond its court filings.

To contact the reporter on this story: Jessica DaSilva at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com