Former Virginia Gov. Bob McDonnell, center, gives a hug to judge Marla Decker, center back to camera, as Taylor Reveley III, president of the College of William & Mary, right, looks on prior to the investiture of Virginia Supreme Court Justice D. Arthur Kelsey in the court chambers in Richmond, Va. Strange bedfellows defend Bob McDonnell

Bob McDonnell suddenly has a lot of friends.

An unlikely coalition of current and former politicians from both parties, prominent legal scholars, and even retired federal judges has gone to bat for the former Virginia governor in his appeal of federal corruption charges.


Nine of ten amici briefs filed last week and Monday argue that the definition of “official acts” used to convict McDonnell is too broad. And though none of the briefs dispute the fact that McDonnell’s family received upwards of $170,000 in gifts and loans from the CEO of a dietary supplement company, they each claim that the access and networking McDonnell offered in exchange were not exertions of gubernatorial power that should be considered “official acts.”

The implication of the briefs is clear: If what McDonnell did constitutes federal corruption, then any number of federal and state officials, Democrats and Republicans, are equally guilty.

Signers of the briefs include a number of former government officials with skin in the game — 44 former state attorneys general (23 of whom are Democrats), two former U.S. attorneys general, attorneys for the past five presidents, and the Republican Governors Association — as well as conservative and liberal scholars united around a separate idea that states should be allowed to determine their own corruption laws.

McDonnell was convicted last September on 11 counts of federal corruption for setting up meetings between Jonnie Williams, the former CEO of Star Scientific Inc., and government officials in exchange for the gifts.

Additionally, the prosecution said that McDonnell wined and dined friends of Williams at a prestigious reception to which he should not have been invited. Among the guests was an endocrinologist who was looking into conducting a study on one of Williams’ products. (The doctor ultimately never studied the supplement, nor did anyone subsidized by the commonwealth’s government.)

All of the amici briefs argue that the Supreme Court has articulated a principle in multiple cases, including Citizens United, that “[i]ngratiation and access are not corruption,” and only the exchange of an “official act” by a government employee for gifts or donations should be included.

One brief, filed by a branch of the Republican Governor’s Association, argues that meeting with political donors or gift-givers and their allies constitutes “everyday, everywhere conduct” that can be found in any number of governors’ mansions across the country.

As evidence of how common it is for politicians to meet with major donors ahead of other constituents, the brief points to the emails of former Florida governor and 2016 hopeful Jeb Bush, released earlier this year by Bush’s political action committee on a specially designed website.

Bush’s emails document that the governor received more requests for meetings than he could possibly schedule, indicating that he would need to focus his attention on only a choice few. Earning a governor’s attention, the RGA’s brief argues, is a right that even President Obama auctions off by holding $5,000-per-ticket private fundraisers.

“[I]f granting a request for access of this kind counted as an ‘official act,’ potentially every elected official in the nation would be in danger of indictment by an overzealous federal prosecutor,” the brief says.

Another brief, signed by retired judge Nancy Gertner and Charles Ogletree, a former professor of and mentor to President Obama and first lady Michelle Obama, argues that the definition of official acts used to convict the former governor is “ill defined” and “unconstitutionally vague.”

Gertner told POLITICO that she believes the issue of what acts and what receipts constitute corruption raises an important constitutional question and could end up in the Supreme Court.

Though she understands that people may be “uncomfortable” with the size of the gifts, she does not believe that the former governor’s actions met the quid pro quo requirement.

“The theory of the prosecution was too broad,” Gertner said. “When you have an ambiguous statute you enable arbitrary enforcement,” and in this case that could enable any prosecutor to go after any politician for doing what politicians across the country do.

But the idea that McDonnell solely granted access to Williams is hotly debated.

At the trial, the prosecution claimed that the former governor lent the prestige of his office to Williams. In particular, they pointed to a reception for Virginia health-care leaders, to which Williams was allowed to invite 25 people. The state’s health secretary objected to the invitations at the trial, because many of the guests were representatives of Williams’ dietary supplement company that he believed were masquerading as doctors or other health care professionals by attending.

Melanie Sloan, a former federal prosecutor who previously served as executive director of Citizens for Responsibility and Ethics in Washington, said that the fact that McDonnell took money personally should be a red flag for corruption, even if he was ultimately unsuccessful in helping Williams secure state backing for a study of his drug. The idea that McDonnell simply gave a contact to Williams in exchange for the gifts is “ludicrous,” Sloane said.

“Jonnie Williams wouldn’t be going to Bob McDonnell if he wasn’t the governor,” she added. “Any time you’re paid for something that you’re doing because you’re the governor, you’ve got a problem.”

Of key importance to the appeal is whether or not donations to political campaigns, in addition to personal gifts, should equally constitute the quid, if the quo of the case is somehow agreed upon.

Peter Zeidenberg, a former federal prosecutor who now works on fraud and corporate governance, said he believes McDonnell’s receipt of personal gifts rather than campaign donations is what makes them most suspect.

If the quid is interpreted as campaign contributions and personal gifts equally and the quo is interpreted broadly, Zeidenberg said, “that’d be everybody.”

“The campaign system to some extent is institutionalized bribery,” Zeidenberg said. “Wake up, smell the coffee, this is the way it works.”