Former Virginia Gov. Bob McDonnell could wind up one of the biggest losers as a result of Justice Antonin Scalia's unexpected death and the potentially protracted battle shaping up over his replacement.

The fall-out could also be felt in other public corruption cases making their way through the courts such as the one against Sen. Robert Menendez (D-N.J.) and in what cases prosecutors choose to bring in the future over politicians' actions on behalf of their financial backers.


The impact could be most acute for McDonnell, who was sentenced to two years in prison after a jury convicted him in 2014 on 11 corruption charges stemming from his and his wife's relationship with businessman and dietary supplement promoter Jonnie Williams. Last August, McDonnell was perhaps weeks away from being required to report to prison when the Supreme Court stepped in, granting him a stay that remains in effect today.

Just one month ago, the high court formally agreed to hear McDonnell's appeal, which argues that his convictions relied — at least in part — on "routine political courtesies" too commonplace to be considered the kinds of official acts that could support a charge of receiving bribes.

Scalia was considered among the most receptive justices to McDonnell's argument that his conviction on corruption charges improperly relied on the kind of favors that are commonplace on the American political scene.

"Scalia was one of the most concerned members of the court about criminalizing politics and the line between what's allowed and what's not allowed," said Rick Hasen, a law professor he University of California at Irvine. "I think his voice would have been a very important one in the McDonnell case."

If the court can't muster five votes in Scalia's absence to overturn McDonnell's conviction, the appeals court ruling upholding his sentence is likely to kick in, and he could be sent to prison.

However, the exercise of counting votes could understate Scalia's role in such a case, which seems like one where his passionate views had the potential to swing other justices. "He would have — or could have — attracted Justice [Elena] Kagan to his position. He could have attracted Justice [Stephen] Breyer. In this instance, Scalia's absence is really to the detriment of the country," Hasen said.

McDonnell is by no means doomed as a result of Scalia's death, experts say. The former governor's lawyers may be able to cobble together a group of five justices to back his position, especially since justices' views on legal issues related to corruption aren't usually as polarized.

"My gut is there is still a broadly written, closely divided Supreme Court opinion taking a narrow view of what is an 'official act,' " in connection with criminal bribery and corruption charges, said Hampton Dellinger, a partner at law firm Boies, Schiller & Flexner who formerly taught campaign finance law at Duke.

No justice dissented from the stay the former Virginia governor won last year, which required five votes. The decision announced last month taking the case required only four justices.

There's a chance the Supreme Court could put McDonnell's case over to the fall for reargument if the justices split evenly. That would allow McDonnell to remain free while the dispute over Scalia's successor is resolved.

"It might be a year now instead of a few months before the court gets to this substantively," Dellinger said.

Alternatively, the court could announce a 4-4 vote, which would uphold the appeals court ruling backing McDonnell's conviction. That would set no precedent, but send the former governor to prison.

One key question is whether the court's liberal justices view a hard line against corruption offenses as necessary to justify their arguments in favor of strong campaign finance laws.

As the maneuvering plays out in the McDonnell case, the legal team for Menendez is keeping a close eye. His case could go to trial later this year. A Supreme Court opinion in McDonnell's favor would be a major aid to Menendez's lawyers in seeking to narrow the charges or the evidence, but likely would not toss the case out altogether.

"It would certainly be helpful to Sen. Menendez, but not having it doesn't seem to be a mortal blow," Dellinger said.

Menendez's lead counsel, Abbe Lowell, declined to comment for this story. A spokesman for McDonnell's lawyers did not respond to a request for comment Monday.

Another politician whose fate could be affected by Scalia's death is former Illinois Governor Rod Blagojevich, convicted at trials in 2010 and 2011 on 18 corruption-related counts, including charges that he effectively tried to sell Barack Obama's Senate seat after he was elected president in 2008.

Blagojevich was sentenced to 14 years in prison. Last year, a federal appeals court overturned five of the counts he was convicted on, but left the rest in place with a ruling that didn't seem likely to cut any time off the governor-turned-reality-TV star's sentence.

Scalia's death comes at a very delicate time for Blagojevich: his petition challenging his convictions is pending right now at the Supreme Court and could be considered by the justices within weeks. With Scalia no longer on the court, the odds of Blagojevich getting relief just got tougher.

"It's a blow, but we're hopeful," Blagojevich attorney Len Goodman told POLITICO Monday. "We’re in a position where we still need four votes [to get the case heard]. Obviously, having nine justices is better than eight from that perspective."

Goodman acknowledged that Scalia's past rulings suggested he might have been willing to take up Blagojevich's case or address the legal questions through another case, like McDonnell's.

"Scalia would probably have been a good judge for our particular issue," the defense attorney said.

However, Goodman said he was still hoping the court will find a consensus that cases like the one against his client went too far in trying to police the long tradition of horse-trading in American politics. Bipartisan groups of public officials have filed briefs with the Supreme Court in both the McDonnell and Blagojevich cases urging the justices to clarify the line between benign political favors and those which can land a politican — or a campaign donor — in prison.

"I think it is a bipartisan concern," Goodman said. "Scalia had expressed some concern about it but so have people on the other side of the aisle."

Even with Scalia on the court, the justices might have been reluctant to agree to hear Blagojevich's case with McDonnell's already on the docket. One possibility is that the ex-Illinois governor's petition might be held until McDonnell's case is resolved—however long that takes.

One important distinction between McDonnell's predicament and Blagojevich's is this: the former Virginia governor is free, while Blagojevich has been behind bars since 2012. That could benefit McDonnell if the Supreme Court's deliberations are frozen by Scalia's absence.

"There are two kinds of criminal defendants: those whose sentences have been stayed pending appeal and those whose sentences have been imposed," Dellinger said. "From that perspective, you'd much rather be in the former group than the latter one."