- The Washington Times - Monday, June 27, 2016

The U.S. Supreme Court on Monday overturned the bribery conviction of former Virginia Gov. Bob McDonnell, saying that while his acceptance of more than $170,000 worth of gifts and loans may have been “distasteful,” it didn’t violate federal law — a ruling that is not expected to have far-reaching effects on public corruption cases.

In an opinion written by Chief Justice John G. Roberts Jr., the high court said that setting up a meeting or organizing an event does not meet the definition of an official action, and is neither a kickback nor a bribe.

Mr. McDonnell — once a rising star of the Republican Party — expressed his “heartfelt gratitude” after the decision.

“From the outset, I strongly asserted my innocence before God and under the law,” he said in a statement. “I have not, and would not, betray the sacred trust the people of Virginia bestowed upon me during 22 years in elected office.”

A Virginia jury in September 2014 found Mr. McDonnell guilty of 11 corruption charges stemming from his acceptance of more than $170,000 worth of gifts and loans from Star Scientific Inc. CEO Jonnie R. Williams Sr. in exchange for promoting his dietary supplement. The former governor’s attorneys argued that Mr. McDonnell never took any official action to help Mr. Williams set up meetings with other state officials for the businessman.

Mr. McDonnell had been sentenced to two years in prison. His wife, Maureen, who was convicted of eight similar charges, was sentenced to a year and a day in prison. Both have remained free during appeals.

Court watchers said they did not know what Monday’s ruling means for Maureen McDonnell, but her attorneys said the court decision applies to her as well. William A. Burck of the law firm Quinn Emanuel Urquhart & Sullivan LLP said the Supreme Court ruling means her conviction will be thrown out.
The Justice Department declined to comment.

“All the court said was that an ‘official act’ requirement must be something akin to an administrative action,” said lawyer Andrew T. Wise, who has argued public corruption cases. “In the run-of-the-mill political corruption case, you’d hope the government would have more than the fact that someone set up a meeting. Those cases would go largely undisturbed.”

Daniel Weiner, senior counsel for the Brennan Center’s Democracy Program at New York University, also said the high court ruling likely won’t affect many other cases.

“A lot of people are going to make hay about this decision, but it’s a narrow decision based on the oddities of this case. Sure, it makes it harder [to secure future corruption convictions], but it’s unclear that this is the radical curtailing of corruption laws we could have seen,” Mr. Weiner said. “The next couple months, we’re going to see defense attorneys and prosecutors going back and forth about the scope of the decision.”

But the former governor is not yet cleared. The justices’ decision sends his case back to the 4th U.S. Circuit Court of Appeals, which must decide whether a jury could have been able to convict Mr. McDonnell if they were given the correct legal definition for an “official action.”

If the Richmond-based court rules that Mr. McDonnell would have been convicted had the jury instructions been correct, federal prosecutors can retry the case. But if the appeals court reasons that Mr. McDonnell would not have been found guilty under a clarified definition of “official action,” the prosecutors won’t be able to bring the case again for the court.

The ruling could affect the cases of governors, senators and other elected officials who either are under indictment or have been convicted. In New York, for example, a federal judge said last month that former Assembly Speaker Sheldon Silver, convicted of illegally pocketing $5 million, could wait until after the Supreme Court ruling to report to prison.

The U.S. attorney’s office for the Southern District of New York issued a statement Monday saying Silver’s case satisfies the high court’s standards.
Other politicians who have been convicted of corruption, such as former Illinois Gov. Rod R. Blagojevich, could try to get their cases overturned.

But Mr. Wise and Mr. Weiner said the narrow ruling won’t affect most previous convictions and current cases, though there could be exceptions.

Mr. Wise, who represented lobbyist Kevin A. Ring in an “honest services fraud” case in connection with the Jack Abramoff scandal, said Mr. Ring’s case could have gone a different way under the court’s clarification of “official action.”

Mr. Ring gave Washington Wizards basketball tickets to former Justice Department Deputy Chief of Staff Robert E. Coughlin. In return, Mr. Coughlin emailed another agency to help secure about $16.3 million in grants for the Choctaw Indians, whom Mr. Ring represented with Mr. Abramoff.

The U.S. Court of Appeals for the D.C. Circuit upheld Mr. Ring’s 2010 conviction, saying the evidence was sufficient because of the impact and influence an email from the Justice Department would have.

“I don’t know if a case like that survives after this decision,” Mr. Wise said. “Not only do you have to forward the email and set up a meeting, but you need evidence that an official tried influence the ultimate result. We could see cases like that subject to challenges.”

Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington, agreed that even with the narrowing of the statute, some cases could be challenged and future cases will face a different set of parameters.

“Bribery has always been a difficult charge to prove, and the Supreme Court just made it more difficult,” Mr. Bookbinder said. “There are a few instances of what a lot of us see as corruption which will be more difficult to prove now. It could be more rare going forward.”

‘Distasteful … tawdry’

Mr. Bookbinder said it’s not enough now to say that public officials set up meetings or expressed support for someone in order to level corruption charges against them.

“That’s a hurdle that wasn’t there before,” he said.

In his relationship with Mr. Williams, Mr. McDonnell accepted gifts such as golf outings, rides in the businessman’s Ferrari, a Rolex watch and $15,000 for catering at the McDonnells’ daughter’s wedding. But the former governor’s efforts on Mr. Williams’ behalf failed to secure state support of the businessman’s products, with state universities declining to research his supplement.

Writing for the court, Chief Justice Roberts said the instructions to Mr. McDonnell’s jury were so broad that any action a public official might take could be considered an “official action.”

“Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) — without more — does not fit that definition of official act,” the chief justice wrote.

“There is no doubt that this case is distasteful; it may be worse than that,” he wrote. “But our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns. It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute.”

Mr. Weiner noted that the court didn’t say whether Mr. McDonnell broke any laws, just that the case was mishandled when jury instructions were given.

“The court said that the behavior issue here was distasteful and maybe worse, so that suggests that they didn’t rule out the fact that laws were broken,” he 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.

⦁ Andrea Noble contributed to this article, which is based in part on wire service reports.

• Ryan M. McDermott can be reached at rmcdermott@washingtontimes.com.

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