If the appeals court finds it is not, then the conviction is overturned and McDonnell cannot be retried, said Levy. If there could be sufficient evidence, then the case would be sent back to the district court for a new trial using the new, narrower definition of official act.

Levy said he anticipates the Richmond-based appeals court will ask for briefs from both sides on the question of whether the evidence would be sufficient.

Andrew G. McBride, a former federal prosecutor now in private practice, said, “I do not believe the government has the evidence to meet the new standard. I think retrial is very unlikely.”

In his appeal, McDonnell’s lawyers urged the Supreme Court to reject what they termed federal prosecutors’ “sweeping” theory of corruption law.

It is a felony under federal law for an official to agree to take “official action” in exchange for something of value. McDonnell argued that referring someone to other decision-makers in government in order to promote Anatabloc was not the sort of action the law was intended to prohibit.

His lawyers said “official action” is limited to exercising actual governmental power, threatening to do so, or pressuring others to do so and that a jury must be so instructed.