Fredreka Schouten

USA TODAY

The Supreme Court’s unanimous ruling overturning former Virginia governor Bob McDonnell’s conviction makes it much harder for the government to prosecute elected officials for public corruption, but not impossible, legal experts said Monday.

The high court set a tougher standard for wrongdoing, saying that helping a wealthy benefactor gain access to state officials, though “distasteful,” does not necessarily prove illegal quid pro quo.

Monday’s ruling “leaves intact the ability of federal prosecutors to go after official misconduct at the state and local level,” said Richard Briffault, a Columbia Law School professor and expert on government ethics.

But prosecutors, he said, “have to link up the quid and quo more tightly and show that the gifts influenced real official actions.”

The case centers on more than $175,000 in fancy gifts and loans that McDonnell and his wife, Maureen, accepted from a wealthy dietary supplement executive during McDonnell’s tenure as governor. In return for those gifts, which included $20,000 in designer clothing and a $6,000 Rolex watch, they helped Star Scientific CEO Jonnie Williams gain access to university researchers and state officials who could help Williams secure federal approval for one of his products.

McDonnell and his lawyers said he never took any official state action to benefit Williams and his company. The justices agreed, arguing against criminalizing elected official’s day-to-day actions.

“Setting up a meeting, calling another public official or hosting an event does not, standing alone, qualify as an official act,” Chief Justice John Roberts wrote in Monday’s decision.

“There is no doubt that this case is distasteful,” he said. “It may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns. It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute.”

Richard Hasen, an expert on election law at the University of California-Irvine School of Law, called the court’s decision “sensible and courageous.”

He described McDonnell’s actions as “odious” but said “vague and broad laws criminalizing ordinary politics raise due process problems, selective prosecutions and unfair treatment.”

At the time, Virginia law did not bar McDonnell from accepting the gifts, and several election watchdogs said Monday’s ruling means states should move quickly to toughen their public-corruption statutes.

“Federal bribery law is not enough to protect the integrity of our democracy,” said Daniel Weiner, senior counsel at the Brennan Center for Justice. “Other common-sense protections, including reasonable limits on both personal gifts and campaign contributions, are absolutely essential.”

Justices overturn former Va. governor McDonnell's corruption conviction

Monday’s decision also could complicate an array of pending cases, including high-profile federal corruption charges against New Jersey Sen. Robert Menendez. The Democrat is accused using his office to benefit a Florida eye doctor in exchange for more than $1 million in gifts and campaign contributions.

Menendez has maintained he did nothing wrong and has argued that the doctor’s gifts were the result of a longstanding friendship.

Lawyers for former New York Assembly speaker Sheldon Silver said Monday that the McDonnell decision "will be central" to their appeal of Silver's corruption conviction. The decision "makes clear that federal government has gone too far in prosecuting state officials for conduct that is part of the everyday functioning of those in elected office," Silver's attorneys Steven Molo and Joel Cohen said in a statement.

Last month, a federal judge sentenced Silver, once one of the most powerful figures in New York politics, to 12 years in prison in a $5 million public-corruption case. He was slated to begin serving his prison time this week, but the judge delayed that until Aug. 31 so the Supreme Court could decide the McDonnell case.



Several campaign watchdogs sharply criticized the court for setting what they view as an unreasonable standard for proving public corruption.

“If you show the facts in the case to any citizen, the citizen will conclude that the public official has sold his office for personal, financial gain,” said Fred Wertheimer, president of the Democracy 21 watchdog group.

“This decision is bound to further undermine the already low confidence of citizens in government and public officeholders," he added.