- The Washington Times - Sunday, June 26, 2016

Former Virginia Gov. Bob McDonnell accepted gifts such as golf outings, a Rolex watch and $15,000 for catering at his daughter’s wedding from a wealthy businessman.

But whether he returned the favors by taking “official action” to promote the businessman’s interests is the question at the heart of a closely watched public corruption case the U.S. Supreme Court is set to decide on Monday.

A reversal of the former Republican governor’s conviction on corruption charges has the potential to make it more difficult to crack down on public corruption, according to legal experts watching the case. Such a ruling could narrow the scope of what constitutes wrongdoing by public officials and lessen prosecutors’ appetite for such cases, they said.

“If the Supreme Court does not uphold the conviction, no one knows just how far the shock waves will go,” said Jordan Libowitz, communications director for Citizens for Responsibility and Ethics in Washington, which has argued that McDonnell’s conviction should be upheld. “He accepted cash for selling access … What we’re worried about is that it will send a signal that you can get away with this.”

But leaving McDonnell’s conviction and two-year prison sentence in place could put government officials at risk of prosecution for everyday acts, argued a politically diverse coalition of Republican and Democrat lawmakers and activists who have rallied in his defense.

Supporters of McDonnell hope that the eight Supreme Court justices, who expressed concern during April arguments that current laws may give prosecutors too much power to criminalize lawmakers’ actions, will clarify in their ruling what crosses the line to constitute bribery and what counts as routine political action taken on behalf of a constituent.

“It’s is a very nuanced key part of the law. It would really help for the courts to bring some clarity to this,” said Tom Davis, who previously represented Virginia in the U.S. House of Representatives and is among those supporting McDonnell. “We can see vindictive prosecutors. You need to put some limits on the parameters.”

A Virginia jury found McDonnell guilty in September 2014 of accepting more than $170,000 in gifts and loans from businessman Jonnie R. Williams Sr. in exchange for promoting Mr. Williams’ diet supplement company, Star Scientific. McDonnell attended events with Mr. Williams and arranged meetings between him and other public officials — even hosting a luncheon at the governor’s mansion that served as a launch for one of Mr. William’s products, the dietary supplement Anatabloc.

The efforts led to no real success in obtaining state support of Mr. William’s products, with state universities declining to research his company’s supplement.

But McDonnell, once a rising star of the Republican Party, was convicted of 11 corruption-related counts including honest services fraud and sentenced to two years in jail. McDonnell’s wife, Maureen, was found guilty on eight counts of similar charges and was sentenced to one year and one day. Both have remained free during appeals.

In their arguments before the Supreme Court, McDonnell’s attorneys said that the official actions the law treated as corruption in the case amounted to no more than “routine political courtesies.”

Several justices expressed skepticism of the government’s case against McDonnell, with Chief Justice John G. Roberts Jr. and Justice Stephen G. Breyer suggesting that the bribery law could be considered unconstitutionally vague.

“That is a recipe for giving the Department of Justice and the prosecutors enormous power over elected officials,” Justice Breyer said.

The Supreme Court last weighed in on what counts as honest services fraud in 2010, when it significantly narrowed the scope of the law in response to an appeal by Jeffrey Skilling, former chief executive of Enron. The court found that for quid pro quo arrangements to be prosecuted as “honest services” fraud, bribes and kickbacks had to be involved. What was left open for interpretation was the level that the “quo” or official action must rise to in order to be considered a crime.

But given some of the “wacky” specifics of the McDonnell case, there may not be a clear cut agreement among the justices, said Daniel Weiner, senior counsel for the Brennan Center’s Democracy Program.

“He basically hawked a product like a guy in an infomercial … We think when he does that it means something, he’s everyone’s boss,” said Mr. Weiner, whose group supports McDonnell’s conviction. “In a lot of other corruption cases you have something that is a little more concrete.”

A decision may still leave plenty open for interpretation, particularly for politicians who are currently facing corruptions charges, such as Sen. Robert Menendez, New Jersey Democrat.

“If they say, ‘He may very well have committed a crime but the way you charged this was crazy’ and remand the case, a lot of these politicians aren’t out of the woods,” Mr. Weiner said.

If the Supreme Court justices don’t offer a more narrowly tailored interpretation in their ruling, Mr. Davis said Congress may be motivated to take action on the issue.

“There are a lot of people in Congress wringing their hands over this,” he said.

• Andrea Noble can be reached at anoble@washingtontimes.com.

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