Lawyers for former Virginia Governor Robert F. McDonnell, arguing that he committed no crime but engaged only in “common political pleasantries” toward a man who supplied him with expensive gifts and favors, has asked the Supreme Court to keep him out of prison until he can appeal his political corruption conviction. He faces the prospect of imprisonment, for a sentence of two years, as early as next Thursday.

The former governor’s case reached the Supreme Court on Thursday, not long after the U.S. Court of Appeals for the Fourth Circuit turned down his request to remain free while he appeals. His new plea was filed with Chief Justice John G. Roberts, Jr., who handles emergency matters from the geographic region that is the Fourth Circuit.

The Chief Justice is free to act on his own or to refer the question to the full Court. The Chief Justice or the Court has the option of asking the federal government to reply to the new application, but also could act without doing so.

In the new filing, his lawyers repeated what they had told the Fourth Circuit earlier, that they will be asking the Supreme Court to overturn his conviction for at least two reasons: first, that prosecutors in his case pressed corruption charges for activity that did not involve any official government action; and, second, that the trial judge did not make an adequate effort to find out if jurors had been influenced by heavy publicity about the case before the trial.

The Justice Department prosecutors in the case, his new application said, rejected the “fundamental distinction between exercising governmental power and merely making an introduction, attending a meeting or event, or inquiring into an issue — a distinction this Court and three other circuits have embraced.”

The case against the governor and his wife, who also was convicted and awaits the outcome of her own appeal to the Fourth Circuit, was based mainly on their relationship with a Richmond businessman, Jonnie Williams. He was interested in having the governor and his wife help promote a supplement that his company had developed. Prosecutors charged with a wide range of personal financial favors and gifts were part of a quid pro quo arrangement with the businessman.

All of the gifts that the couple received, the new filing argued, were entirely legal — until prosecutors turned them into the basis for charging him with dishonesty as a public servant and with extortion based on official acts.

The attorneys for McDonnell have not yet filed their planned petition challenging his conviction and sentence with the Supreme Court. They have almost three months before the petition would be due at the Court. Thus, the Justices may not act on that appeal until sometime early next year.

The lawyers told the Court that, unless he is kept out of prison now, he could actually serve his entire two-year prison term, even if the Court were ultimately to agree to hear his case and rule in his favor.

The petition will reach the Court in a form in which the Justices will have complete discretion whether to grant review. It would take the votes of four Justices to do that.

Recommended Citation: Lyle Denniston, Ex-Gov. McDonnell in new plea to remain out of prison, SCOTUSblog (Aug. 22, 2015, 5:56 PM), https://www.scotusblog.com/2015/08/ex-gov-mcdonnell-in-new-plea-to-remain-out-of-prison/