The McDonnell Supreme Court Case: What Comes Next?

June 30, 2016

Who is Robert McDonnell and what was the basis for his corruption conviction?
Robert McDonnell was the Governor of Virginia from 2010 to 2014. He and his wife were convicted
last year in federal court of bribery offenses for accepting more than $175,000 in loans and gifts from a
Virginia businessman named Jonnie Williams in exchange for agreeing to help Williams promote a dietary supplement through
his company, Star Scientific. The charges included theft of honest services fraud and extortion under color of official right.
Both statutes require proof that the defendant did or agreed to do an official act in exchange for something of value.
Prosecutors argued that McDonnell agreed to perform multiple official acts in exchange for the loans and gifts, including
arranging meetings between Williams and certain government officials subordinate to the Governor, hosting and attending
events designed to encourage state university officials to conduct studies supported by Williams, and promoting Williamss
products to Virginia officials by providing them with related materials and encouraging them to meet with Williams.
How did the McDonnell case get to the Supreme Court?
After McDonnells conviction was affirmed in the Fourth Circuit Court of Appeals, he appealed to the Supreme Court. One
of his arguments was that the jury at his trial had been improperly instructed as to what constitutes an official act. Because
the parties stipulated that the controlling definition of official act was the one used in the federal bribery statute, 18 U.S.C.
201, the Supreme Court utilized that definition in scrutinizing the jury instructions, even though the statute was not used to
charge McDonnell, since it applies only to federal officials. Under 201, an official act is any decision or action on any
question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought
before any public official, in such officials official capacity, or in such officials place of trust or profit. The District Courts
jury instructions had quoted this definition and advised that the term included acts that a public official customarily
performs, including acts in furtherance of longer-term goals.
How did the Supreme Court rule?
The Supreme Court vacated McDonnells convictions, ruling that the jury instructions given at his trial were overly broad and
failed to give the jury proper guidance. The Court interpreted the statutory definition of official act as a decision or action
on a question, matter, cause, suit, proceeding, or controversy that must involve a formal exercise of governmental power
and must be specific and focused on something pending or that may by law be brought before a public official. The
Court concluded that actions like setting up meetings, talking with other officials, or organizing events do not alone meet the
official act standard. Pressuring or advising another official to commit an official act however, would meet the standard.
What comes next for McDonnell?
McDonnells case has been remanded to the Fourth Circuit Court of Appeals for further proceedings. That court will likely
address McDonnells claim (left unresolved by the Supreme Court) that the evidence against him is legally insufficient under
the Supreme Courts newly narrowed definition to establish that he committed or agreed to commit an official act in exchange
for Williamss gifts. If the Court of Appeals agrees with McDonnell that the evidence is insufficient, it will dismiss the charges;
if it finds that there is sufficient evidence a new trial may be set. Federal prosecutors will then decide whether they wish to
retry McDonnell, in which case the jury instructions at retrial will have to comport with the Supreme Courts ruling.
How does the Supreme Courts decision affect other pending cases?
Maureen McDonnell was convicted along with her husband and sentenced to a year and a day in prison. On appeal, her case
was put on hold pending the Supreme Courts review of McDonnells case. Her conviction will now be overturned as well.
Public corruption cases nationwide have awaited the McDonnell decision before proceeding, such as the trials of Councilwoman
Tamela Lee of Summit County, Ohio and Treasurer Anthony Burfoot of Norfolk, Virginia. In New York State, former
Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelosboth recently convictedreceived stays
of their prison surrender dates, in case the McDonnell ruling impacted their chance of successfully appealing their convictions.
But the McDonnell decision will be unlikely to help defendants in those and other cases. While it was an issue before them, the
Supreme Court declined to invalidate the statutes at issue in their totality, but instead merely narrowed and clarified the
definition of official action. Defendants in cases with facts that meet the new definition will be unlikely to get relief. For
example, in the Silver case, trial evidence showed that Silver directed state funding that he controlled as Speaker to a particular
individual as part of a kickback scheme. Similarly, Skelos was convicted of taking bribes in the form of employment for his son
in exchange for favorably affecting legislation under his control as Majority Leader. Both cases clearly involved a decision or
action that was specific and focused on a matter brought before him as a public official that required a formal exercise
of governmental power. Thus, while those cases could take various procedural pathsincluding new trials if their jury
instructions were deemed harmfully erroneousMcDonnell will be unlikely to result in the reversal of their convictions.