The U.S. Supreme Court has agreed to hear former Gov. Bob McDonnell’s appeal of his corruption convictions, focusing on the question of what constitutes an “official act” under federal bribery statutes.
The justices’ decision, announced Friday afternoon, means they will take up the issue of whether McDonnell was convicted based on an overly broad definition of what constitutes bribery. The Republican has said he was convicted for actions that amounted to “routine political courtesies.” The case will be argued in April. A decision is expected by the end of June. “I am very grateful to the U.S. Supreme Court for its decision today to hear my case,” McDonnell said in a statement.
“I am innocent of these crimes and ask the court to reverse these convictions. I maintain my profound confidence in God’s grace to sustain me and my family, and thank my friends and supporters across the country for their faithfulness over these past three years.” The Obama administration had urged the court to reject McDonnell’s appeal, saying the jury had sufficient evidence of bribery. The U.S. Attorney’s Office for the Eastern District of Virginia, which prosecuted the case, declined comment on the Supreme Court’s decision. In September 2014, a federal jury in Richmond convicted Virginia’s 71st governor and his wife, Maureen, on corruption charges based on their acceptance of $177,000 in gifts and loans from Jonnie R. Williams Sr., then head of Star Scientific, in exchange for promoting the company’s dietary supplement, Anatabloc.
The fact that the Supreme Court agreed to hear McDonnell’s appeal is “a huge win for the defense,” said Charles E. “Chuck” James Jr., a former federal prosecutor who is now an attorney at Williams Mullen in Richmond. “Bob McDonnell and his legal team have beaten the odds. Only a small percentage of petitions are granted, but this has been extraordinary in several respects,” James said. “Given the fact that Justices (Antonin) Scalia, (Anthony M.) Kennedy and (Clarence) Thomas have all questioned the viability of the Honest Service Act, this decision is not entirely unexpected and could bode well for a decision on the merits,” James said. “With this victory, Bob McDonnell will remain at liberty and has to be buoyed by this development.” Henry L. Chambers Jr., a professor at the University of Richmond School of Law, said the justices appear poised to decide what a government official must do to be guilty under the Hobbs Act or for honest services fraud. Those crimes require a government official to engage in “official acts” to be guilty. But an “official act” appears to cover almost any action that a government official takes to push forward any issue that has been brought in front of the official, he said. Chambers said the court will determine if the actions McDonnell took are “official acts” under the statutes. Or the court could decide that a public official must use government power more directly or forcefully than did McDonnell in order to have engaged in official acts, he said. The justices narrowed the law in the 2010 case of Enron CEO Jeffrey Skilling, ruling that bribery and kickbacks qualify as honest services fraud when engaged in by a public official. “The jury came to the conclusion in this case that Bob McDonnell had taken bribes,” Chambers said. “What I think the court is doing at this point is asking: ‘Did he really take bribes? We know that there was money involved, but did he really take official acts in exchange for money?’ ”
McDonnell’s lawyers contend the government is trying to impermissibly broaden the law so that it could include almost any political act. They argue that an official action must be something more than a luncheon or an introduction to a state official. Andrew G. McBride, a former federal prosecutor in Virginia, said Friday, “I think the governor is in an excellent legal position right now with a high probability of success.”
But Carl Tobias, also with the University of Richmond School of Law, points out that last July, a three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously upheld Bob McDonnell’s convictions. “I think it will be close,” Tobias said. “The tea leaves are hard to read right now.” In January 2015, U.S. District Judge James R. Spencer sentenced Bob McDonnell to two years in prison. In February that year, he sentenced the former first lady to a year and a day. Both McDonnells have been free pending the result of their appeals. In October, a Richmond-based federal appeals court granted Maureen McDonnell’s request to put her case on hold while the Supreme Court decided whether to take up her husband’s appeal.
It’s been two years since the McDonnells were indicted, on Jan. 21, 2014 — a week after Bob McDonnell left office as governor. The indictment capped a stunning fall from grace for the former governor, who was a surrogate for 2012 Republican presidential nominee Mitt Romney and who once was mentioned as a possible presidential contender in 2016. The McDonnells’ trial in Richmond began in late July 2014 and unfolded over six weeks. It became a spectacle that drew national attention as details emerged of the McDonnells’ fraying marriage and the lavish gifts they accepted from Williams, such as a $20,000 New York shopping spree for the first lady and a $6,500 Rolex watch for the governor. At one point in the trial, Maureen McDonnell’s chief of staff depicted the former first lady as a screaming “nutbag.” Much of the former governor’s defense had centered on blaming Maureen McDonnell for coaxing a relationship with Williams while she faced a time of emotional and financial challenge.
Bob McDonnell was convicted on 11 corruption counts and Maureen McDonnell on nine. Spencer, the trial judge, later dropped one of Maureen McDonnell’s convictions, on a charge of obstruction of justice. In sentencing Maureen McDonnell last February, Spencer said the McDonnells had presented a “Let’s throw mama under the bus defense” and that at Bob McDonnell’s sentencing, it had morphed into “Let’s throw mama off the train.” Political analyst Robert D. Holsworth, a former dean and professor at Virginia Commonwealth University, sat through much of the McDonnells’ trial. He said Friday that he thinks the defense team has done a much better job in the appeals process than it did during the trial. “The reality TV defense they put forward turned out to be almost laughable in the minds of the jury,” Holsworth said of the effort to shift blame to McDonnell’s wife. Holsworth said it’s not surprising the high court took the case since some justices have expressed reservations about the scope of the honest services fraud act under which McDonnell was convicted. “This was always in some ways his best chance,” Holsworth said.