Friday, September 16, 2016

Last week, the U.S. Attorney’s Office for the Eastern District of Virginia moved to dismiss public corruption charges against former Virginia Governor Robert McDonnell, and his wife, Maureen McDonnell. The decision comes after the U.S. Supreme Court unanimously vacated the former Governor’s corruption conviction earlier this summer. McDonnell v. United States, 579 U. S. ____ (2016). The government’s decision not to further pursue charges against the McDonnells is a signal that prosecutors are paying heed to the Supreme Court’s warnings about over-aggressive interpretations of criminal statutes and that they had scant additional evidence against the McDonnells.

In January 2014, McDonnell and his wife were indicted on federal corruption charges for allegedly receiving improper gifts and loans from a Virginia businessman. The charges related to $175,000 in loans, gifts, and other benefits that the McDonnells accepted from the CEO of a Virginia-based company.

McDonnell was convicted of various corruption-related charges which hinged on language in the federal bribery statute, 18 U.S.C. § 201, that makes it a crime for “a public official, . . . directly or indirectly, corruptly . . . to receive or accept anything of value” in return for being “influenced in the performance of any official act.” § 201(b)(2). An “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity . . . .” § 201(a)(3).

The government argued that McDonnell had committed at least five such “official acts,” including by “arranging meetings” with Virginia officials, “hosting and attending” events at the Governor’s Mansion, and “contacting other government officials” – all to discuss and promote the company or to encourage Virginia officials to initiate studies relating to one of the company’s products.

In June, the Supreme Court unanimously vacated McDonnell’s convictions, holding that “setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”

Chief Justice Roberts explained that an “official act” must involve “a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee,” adding that it “must . . . be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.”

While the Court vacated McDonnell’s convictions, it left the door open for a new trial. Last week, the government decided to forego the opportunity to address the sufficiency of the evidence. “After carefully considering the Supreme Court’s recent decision and the principles of federal prosecution, we have made the decision not to pursue the case further,” the U.S. Attorney’s Office for the Eastern District of Virginia explained in a statement announcing the decision.

McDonnell has important implications:

First, as a practical matter, prosecutors will have a more difficult time establishing the existence of a quid pro quo in public corruption cases going forward. This is reinforced by the government’s decision not to retry McDonnell and his wife. The government’s decision suggests that prosecutors have concerns about the government’s ability to sustain a conviction under the standard articulated by the Supreme Court. This is no surprise since if the government had better evidence of actual “official acts” it surely would have charged those in the first instance.

Second, although the Court had a relatively narrow task – construing the meaning of “official act” under § 201(a)(3) – it once again signaled its willingness to push back on the government’s expansive interpretation of a federal criminal statute. This is one of several recent cases where the Court has construed a criminal statute to protect against overzealous prosecutions. See, e.g., Yates v. United States, 574 U. S. ____ (2015) (interpreting the term “tangible object” under 18 U.S.C. § 1519); Bond v. United States, 572 U. S. ____ (2014) (interpreting the term “chemical weapons” under 18 U. S. C. §229(a)). The defense bar should be emboldened by this trend.