In late June, the Supreme Court voted unanimously to vacate the conviction of former Virginia Governor Robert McDonnell, who was found guilty by a jury in 2014 on 11 corruption-related charges. The court has sent the case to the 4th Circuit Court of Appeals, which will decide whether there is sufficient evidence to re-try the case according to the Supreme Court’s interpretation of the federal bribery statute.
The case revolves around the relationship between a Virginia businessman, Jonnie R. Williams Sr., and the state’s ex-First Family.
Williams, the founder and former CEO of Star Scientific (now called Rock Creek Pharmaceuticals), had given the family more than $175,000 in loans and gifts in 2011 and 2012 in efforts to promote and then secure research funding in the launching of a dietary supplement, Anatabloc.
In May 2011, for example, Williams sent the financially distressed family two checks: one for $50,000 as a loan and another for $15,000 to help pay for their daughter’s wedding. A week later, McDonnell’s wife, Maureen, attended a Star Scientific promotional event in Florida and offered to host a product launch for the company at the governor’s mansion.
Also, in August 2011, after Williams purchased a Rolex for the governor, Maureen and her staff arranged to have the McDonnells attend a luncheon at the governor’s mansion, also attended by state university research scientists – guests Williams had a hand in selecting.
In February 2012, Maureen messaged the governor and a top policy adviser noting that “[Williams] has calls in to VCU & UVA & no one will return his calls.” In another message, she wrote, “Gov wants to know why nothing has developed w studies after [JW] gave $200,000.”
In the end, the research was never conducted, and Anatabloc was eventually pulled from the market. Though Virginia had no laws against the governor receiving gifts and loans at the time, a jury nevertheless determined that the governor and his wife had acted illegally. McDonnell was found guilty on charges of conspiracy, extortion, and “honest services” fraud and was sentenced to two years in prison.
Yet in their appeal to the Supreme Court, McDonnell and his lawyers argued that they were simply helping a constituent, and that the jury had erred in construing actions such as arranging meetings and promoting a business’s product as corrupt and illicit. Moreover, McDonnell’s defense argued, since Williams did not tangibly benefit from the governor’s assistance, there was no concrete quid pro quo arrangement.
In this vein, McDonnell’s lawyers explicitly invoked the argument the Supreme Court made in its 2010 Citizens United ruling, which determined that individuals and corporations can spend unlimited amounts of money during a political campaign so long as they do not directly coordinate with a candidate.
In that decision, the majority argued that since such spending was independent of a candidate, it does not “lead to, or create the appearance of, quid pro quo corruption.”
In its ruling in the McDonnell case, the court applied a similar rationale, convinced by the defendant’s argument that Williams was not self-evidently the beneficiary of governmental action.
For a jury to find McDonnell guilty, Chief Justice John Roberts argues, McDonnell’s actions must be shown to have violated the federal bribery statute, which makes it illegal for a public official in the United States to “corruptly demand, seek, receive, accept or agree to receive or accept anything of value personally…in return for being influenced in the performance of any official act.”
Roberts argues that the jury that convicted McDonnell had not been properly instructed on what constitutes an “official act,” which he defines as “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.”
During oral arguments, some justices seemed convinced by the government’s contention that every act by a public official is an official act. Yet in the end, all eight justices voted to remand the case to the circuit court.
In his written opinion, Roberts stressed that while the governor’s behavior was “distasteful” and perhaps “worse than that,” it was nevertheless typical for an elected representative. “Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time,” he wrote.
Legal experts disagree on the soundness of the ruling. UC Irvine Law Professor Richard Hasen called it “courageous and sensible” and an important step in curtailing prosecutors who might abuse an overly broad conception of bribery.
However, others see the ruling as another sign that the Roberts Court is naive about the influence of money in politics. Convicted lobbyist Jack Abramoff, for instance, told The New York Times that he is “concerned by what seems to be a lack of understanding on the part of the justices that a little bit of money can breed corruption.”
Jeffrey Toobin agrees and sees troubling parallels between the Citizens United and McDonnell rulings.
“McDonnell’s argument is that Congress can only prohibit bribery when there is an explicit quid pro quo—a payment or gift in return for a specific official act,” he wrote for The New Yorker in May. “In both cases…the Court seems determined to define quid pro quo so narrowly that it’s practically impossible to find.”