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McDonnell’s Supreme Court Appeal Could Change Politics

Case hinges on what qualifies as an 'official action' under bribery and fraud laws

The Supreme Court decision in the appeal of former Virginia Gov. Bob McDonnell could have a chilling effect on elected officials. (CQ Roll Call)
The Supreme Court decision in the appeal of former Virginia Gov. Bob McDonnell could have a chilling effect on elected officials. (CQ Roll Call)

The Supreme Court hears oral arguments Wednesday in the corruption case against former Virginia Gov. Bob McDonnell over a businessman’s gifts, including $20,000 for a Fifth Avenue shopping spree, more than $5,000 for a monogrammed Rolex and the use of a convertible Ferrari.  

Put those sensational details aside, however, and the Supreme Court’s decision in the McDonnell appeal could have a chilling effect on how members of Congress and other elected officials do their jobs — as well as how lobbyists and campaign donors interact with them.  

“I think every politician should be semi-terrified about the implications of the case,” said Washington lobbyist Ken Kies, managing director of The Federal Policy Group, and frequent federal campaign donor. “I’m guessing a lot of members would just say, ‘That’s not me.’ But if you’re thinking seriously about this, you need to consider whether or not what you do could reasonably be described as similar to what McDonnell got convicted of.”  

Prosecutors said that in 2011 and 2012, McDonnell and his wife, Maureen, solicited and secretly accepted more than $175,000 in money and luxury goods from Virginia businessman Jonnie Williams, including golf outings, vacations and personal loans. The Justice Department contended that in exchange, McDonnell agreed to have his office help Williams seek favorable actions from the Virginia state government.  

McDonnell, once a rising star in Republican circles and a potential vice presidential pick, was convicted in 2014 on 11 counts and sentenced in 2015 to two years in prison. His one term ended in January 2014, about two weeks before he was indicted. Maureen McDonnell was also convicted in the bribery and corruption scheme, and sentenced to a year in prison.  

Williams wanted researchers at Virginia’s state medical schools to perform extensive scientific testing on a dietary supplement called Anatabloc developed by his company, Star Scientific, the Justice Department states. Bob McDonnell raised Anatabloc in a meeting with state officials, set up a meeting for Williams with other state officials, recommended that senior state officials meet with Star Scientific executives, and held a lunch at the Governor’s Mansion in Richmond that focused on Anatabloc.  

McDonnell’s appeal is the last day of oral arguments for the current Supreme Court term, which ends in June. A decision is expected by then.
The issue in the Supreme Court case is what qualifies as an “official action” under the federal bribery and honest-services fraud laws, which make it a felony to agree to take “official action” in exchange for money, campaign contributions or anything of value.  

The Justice Department says that McDonnell — who was in debt at the time — agreed to use the power of his office to help Williams’ company in exchange for the gifts. McDonnell’s lawyers say the “supposedly official acts” in the indictment were not the use of government power but limited to routine political activities of arranging meetings, asking questions and attending events.  

McDonnell’s lawyers have told the Supreme Court that upholding the former governor’s conviction “would make every elected official and campaign contributor a target for investigation and indictment.”
“Officials routinely arrange meetings for donors, take their calls, politely listen to their ideas and refer them to aides,” McDonnell’s lawyers told the Supreme Court in a brief. “In criminalizing those everyday acts, the Government has put every federal, state, and local official nationwide in its prosecutorial crosshairs.”  

A group of 77 former state attorneys general filed a brief in the case expressing the same concerns about “consequences that would be felt on the ground.”  

“At best, the lower courts’ definition of ‘official act’ will make public officials think twice before delivering basic constituent services — and lobbyists think twice about seeking them — for fear of federal prosecution,” the attorneys general brief states.  

“Why speak about the State’s economic progress at a lobbyist-organized lunch if that lunch might later feature in an indictment? Why introduce businesspeople in the community to legislators and other policymakers when a federal prosecutor might later call those introductions ‘official actions’ bought at the price of a lunch at the local steakhouse?” the brief states.  

Kies said the case raises a fundamental question of how do you know when a lawmaker has crossed the line. “Does this suggest if you want to be on the safe side, don’t give any money, or don’t ever ask a member of Congress to do anything that would benefit you financially even it is consistent with your business?” he said.  

The Justice Department told the Supreme Court that the conviction poses no threat to legitimate political activity. McDonnell’s reading of the bribery laws would radically restrict the laws and “allow the purchase and sale of much of what government employees do,” the Justice Department said in a brief.  

Government employees do not need to direct the ultimate disposition of a matter to take official action, and the statutes outlaw even the exercise of influence through informal channels, the government states.  

The appeals court upheld McDonnell’s convictions on a well-established standard: “on the unexceptionable proposition that a public official violates federal corruption statutes where, as here, he accepts personal benefits in exchange for his agreement to influence government matters.”  

“The evidence at trial amply supported the jury’s finding that Williams lavished gifts on petitioner not to obtain the sort of general ‘access’ commonly provided to campaign donors,” the Justice Department argued, “but rather in exchange for petitioner’s agreement to use his position to influence state officials to dispose of government matters in a manner favorable to Williams.”  

The Supreme Court in August said McDonnell could stay out of prison while the justices considered his appeal. Maureen McDonnell has also remained free during her appeal.  

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