Supreme Court Vacates McDonnell Conviction

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By Kenneth P. Doyle

June 27— The Supreme Court's unanimous decision to vacate the conviction of former Virginia Gov. Robert McDonnell (R) was blasted by good-government groups and applauded by white-collar defense attorneys and some legal experts ( McDonnell v. United States, U.S., No. 15-474, 6/27/16 ).

Groups such as the liberal watchdog group Citizens for Responsibility and Ethics in Washington (CREW) said the ruling threatens to legitimize corruption. Noah Bookbinder, CREW's executive director, said the Supreme Court decision would “seriously impede law enforcement’s efforts.”

Others, including Craig Engle, a former Federal Election Commission official who is now political law attorney with the law firm Arent Fox, said the court's decision would end a “long string of DOJ losses to bring down honest, hard-working public servants.”

The Supreme Court's 8-0 opinion, written by Chief Justice John G. Roberts Jr. said the government's definition of “official act” was too expansive and had to be narrowed for a conviction to be upheld.

The justices remanded the case back to the lower courts to determine whether McDonnell could be retried and convicted under the new, narrower standard established by the ruling.

That move means McDonnell's fate will remain uncertain for awhile. It could also affect the cases of a number of other officials prosecuted or facing prosecution by DOJ or state prosecutors.

Other Corruption Cases Affected

Major examples include the former top state lawmakers in New York, Sheldon Silver and Dean Skelos, who were convicted in separate corruption cases last year in federal court. In May, Silver and Skelos were allowed to remain out of jail, pending appeal, because their cases could be affected by a Supreme Court precedent in the McDonnell case (See previous story, 05/20/16).

Silver, the former speaker of the New York State Assembly, was sentenced to 12 years in prison for corruption. After he appealed, Judge Valerie E. Caproni of the U.S. District Court for the Southern District of New York, reversed an order for Silver to report to prison and said further briefing on possible continued bail pending appeal should be delayed pending the Supreme Court decision in the McDonnell case.

Similarly, Skelos, the former New York Senate majority leader, was sentenced to five years in prison by Judge Kimba Wood of the U.S. District Court for the Southern District of New York but not ordered to report to jail yet. Wood deferred to a suggestion by DOJ prosecutors in the case that imprisonment of Skelos be delayed pending the Supreme Court's McDonnell ruling.

In addition, two other former governors, Democrats Rod Blagojevich of Illinois and Don Siegelman of Alabama, have remained in jail following their corruption convictions but have continued to pursue appeals based on arguments that their prosecutions should be invalidated.

McDonnell, himself, was sentenced to two years in prison after his conviction by a federal jury following a trial in 2014. He hasn't served any of that sentence, however, due to an Aug. 31, 2015, stay from the Supreme Court.

The jury in McDonnell's case found that he 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., who was trying to market a tobacco-based dietary supplement. The gifts came in exchange for efforts to assist Williams' Virginia company in securing state university testing and other efforts on behalf of the supplement, according to the U.S. Court of Appeals for the Fourth Circuit ruling affirming the conviction by the U.S. District Court for the Eastern District of Virginia.

Roberts Cites Chill on Politics

Writing for the Supreme Court in the unanimous opinion handed down June 27, Roberts called the facts of McDonnell's case “tawdry” but said his actions might not be illegal. Arranging meetings, hosting events and making calls to subordinates would not qualify as official acts without evidence the governor was applying pressure to achieve a particular result on a pending government action, the court opinion said.

Prosecutors' “expansive interpretation” of what constitutes an “official act” could mean that a public official who arranged a meeting or hosted an event for a campaign contributor could be found guilty of corruption, the opinion said.

“But, conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time,” Roberts wrote. “The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.”

The government's position in the McDonnell case would “cast a pall” over such interactions if the constituents in question had given money to the officials' campaign or invited the official to lunch or a baseball game, the chief justice concluded.

The result in the McDonnell case was not a surprise after Supreme Court justices across the usual ideological spectrum repeatedly expressed doubts about upholding his conviction during an oral argument in April (See previous story, 04/28/16).

Curbing Prosecutors

During the argument, Justice Stephen Breyer dominated questioning of the government's lawyer, Deputy U.S. Solicitor General Michael Dreeben, saying that giving too much power “to a criminal prosecutor, who is virtually uncontrollable, is dangerous.” Breyer said there has to be a “limiting principle” in the law to ensure that routine practices of government officials cannot be subject to prosecution under federal bribery and other anti-corruption laws.

Attorney Noel Francisco of the firm Jones Day, who represented McDonnell during the Supreme Court argument, noted that federal officials are covered by strict ethics rules barring nearly all gifts, but such rules did not apply to McDonnell. Virginia's ethics rules had no strict limits on gifts when McDonnell was governor from 2010-2014.

“The problem here is that we had a state regime that was much less stringent than the federal regime, and the government wanted to use [federal anti-corruption laws] to fill that gap,” Francisco told the justices. “I would respectfully submit that that is an inappropriate use of federal power.”

Dreeben told the justices that a ruling in favor of the former governor would be “a recipe for corruption” and “would send a terrible message to citizens,” prompting Breyer to respond: “I'm not in the business of sending messages in a case like this.”

Reaction to the court ruling was sharply divided, but several attorneys practicing election and ethics law hailed the high court ruling.

Michael Levy, a white-collar defense expert at the firm Paul Hastings said the Supreme Court has rejected “an overly broad interpretation by the Department of Justice of a federal criminal statute.” Levy added, “It isn’t easy to convince every justice of the Supreme Court to overturn a criminal conviction, but the Court repeatedly has made it clear that it will not tolerate excessively aggressive interpretations of federal criminal statutes.”

CREW: Selling Access Allowed

“McDonnell accepted nearly $200,000 in cash and luxury goods, including a Rolex watch and flights in a private jet, in exchange for using the governor’s office to help a business,” CREW's Bookbinder said. “The Supreme Court today held that although the governor and his aides took action—with state resources—on behalf of the business, those actions do not go far enough to constitute ‘official actions' without prosecutors proving still more, creating an additional hurdle before corrupt conduct is considered illegal.”

The justices “essentially just told elected officials that they are free to sell access to their office to the highest bidder,” Bookbinder added. “If you want the government to listen to you, you had better be prepared to pay up.”

Tara Malloy, deputy director of the nonprofit Campaign Legal Center, which supports tougher ethics and campaign finance rules, chimed in to say the McDonnell ruling “makes it even more difficult to protect our democracy from attempts by officeholders to peddle political access and influence to the highest bidder.”

Call for State Ethics Laws

Malloy said the case could have been avoided if Virginia had taken “the necessary and vital steps to prohibit the receipt of huge gifts from people who have business before the government.” She said the ruling should prompt states to pass strong gift laws and campaign finance laws, “which are designed to prevent bribery schemes from hatching in the first place.”

Election and ethics law expert Richard Hasen, a law professor at the University of California, Irvine, said McDonnell's case provided a difficult challenge for the Supreme Court, but suggested the unanimous ruling arrived at the correct result.

“It is hard to write an opinion letting off the hook someone whose actions were as odious as Gov. McDonnell, in taking Rolexes, funding for his daughter’s wedding and more from someone who wanted the governor’s assistance in marketing the equivalent of snake oil,” Hasen wrote on his Election Law Blog. “But it was the right thing to do.”

The Supreme Court opinion “does not mean that there’s an easy path to corruption,” Hasen said. He noted that, on remand, McDonnell still could be convicted and added that every state should make it illegal for public officials to accept large gifts from non-family members.

But, Hasen praised the Supreme Court for being “able to speak in one voice” and noted that the vacancy created on the court by the death of Justice Antonin Scalia did not make a difference in the result. “The case would have been 9-0 not 8-0 had Justice Scalia not died in February,” he said.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com

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