McDonnell: Supreme Court Overturns Ex-Governor’s Corruption Conviction And Narrowly Defines “Official Act”
On June 27, 2016, the US Supreme Court issued a unanimous decision in McDonnell v. United States.1 In an opinion authored by Chief Justice John Roberts, the Court overturned former Virginia Governor Robert F. McDonnell’s conviction on 11 bribery-related charges of honest services fraud and Hobbs Act extortion. The Court did so because the trial judge incorrectly instructed the jury with an overbroad definition of the term "official act," as used in the federal bribery statute and adopted by the parties at trial, such that the jury might have convicted Gov. McDonnell for lawful conduct. The Court’s narrowed definition of "official act" reinforces its unanimous 1999 decision in United States v. Sun-Diamond Growers of California,2 and cements a distinction between routine political favors and the corruption of official decision-making.
The Court held that "setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an 'official act,'" and rejected the Government’s arguments to the contrary.3 The Court clarified that an "official act" must involve a public official making a decision or taking action on a "specific and focused" issue that involves "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."4
By tightening the definition of "official act," McDonnell significantly limits the type of conduct that could support a bribery charge. Despite the "tawdry tales" of gifts given to Gov. McDonnell and his family, the Court emphasized the need to limit "the Government’s boundless interpretation of the federal bribery statute."5 At the heart of its analysis was the recognition that "[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns," and that too loose a definition of "official act" might cause "citizens with legitimate concerns [to] shrink from participating in democratic discourse."6 McDonnell reflects the Court’s continued skepticism of white collar prosecutors' aggressive interpretations of criminal statutes.
On November 3, 2009, McDonnell was elected the governor of the Commonwealth of Virginia. He took office in January 2010, amidst national efforts to recover from the economic recession. During his campaign and time in office, Gov. McDonnell emphasized economic development and the promotion of Virginia businesses.7 His wife, Maureen G. McDonnell (Mrs. McDonnell), served as the First Lady of Virginia.
During McDonnell's campaign, Virginia businessman Jonnie R. Williams Sr. promoted Star Scientific Inc. (Star), a dietary supplement company that Williams founded and served as chief executive officer.8 Star sought to launch Anatabloc, a new dietary supplement based on anatabine, a tobacco-derived alkaloid. Williams hoped Anatabloc could be used to treat chronic inflammation. Star wanted the federal Food and Drug Administration to classify Anatabloc as an anti-inflammatory pharmaceutical and sought to enlist Virginia's public universities in conducting the research studies necessary to secure regulatory approval.9
Williams first met Gov. McDonnell in 2009, when he offered his private plane for use in McDonnell's election campaign.10 From 2009 through 2012, Williams also gave or offered Gov. McDonnell and his wife various things of value, including $70,000 in real estate loans, $20,000 in designer clothing for Mrs. McDonnell, a $15,000 gift to help pay for their daughter's wedding, a separate $10,000 cash wedding gift, and a Rolex watch.11
At trial, the Government alleged that in 2011 and 2012, Gov. McDonnell took five actions in connection with Anatabloc, some of which were close in time to discussions with Williams about gifts and loans:
- Arranging a Meeting. In July 2011, after a visit to Williams' vacation home, Gov. McDonnell asked the Virginia Secretary of Health and Human Services to send an aide to a meeting between Mrs. McDonnell and Williams about conducting clinical trials for Anatabloc at two state universities: Virginia Commonwealth University (VCU) and the University of Virginia (UVA). During the aide's meeting, Williams did not request anything from the McDonnell Administration.
- Attending a Luncheon. In August 2011, the McDonnells hosted a luncheon at the Executive Mansion with Star and researchers from VCU and UVA. At the event, Star presented free samples of Anatabloc and checks totaling $200,000 to fund proposals for research grants. Williams asked Gov. McDonnell whether he would support state funding for clinical research for Anatabloc; Gov. McDonnell responded that he had "limited decision-making power in this area."12
- Emails Regarding Anatabloc. In January 2012, Williams complained to Mrs. McDonnell that VCU and UVA were not returning Star's calls despite its grants to prepare research proposals. Mrs. McDonnell told Gov. McDonnell of Williams' complaints, and he later emailed his counsel "about Anatabloc issues at VCU and UVA."13
- Inviting Williams to an Industry Reception. In February 2012, Gov. McDonnell hosted a reception at the Executive Mansion for the healthcare industry. Williams attended. Mrs. McDonnell also invited some guests that Williams recommended, including researchers at Virginia universities. During the event, Gov. McDonnell made no mention of Williams, Star, or Anatabloc.
- Suggesting a Meeting. In March 2012, during a meeting with two state officials about government employee health plans, Gov. McDonnell—who was taking Anatabloc several times daily—took a pill and remarked that it had been "working well" for him.14 One of the officials later recalled that McDonnell was asking them to meet with a Star representative; the other official had no such recollection. Ultimately, they took no further action because state health plans did not cover dietary supplements.15
On January 21, 2014, shortly after leaving office, Gov. McDonnell and Mrs. McDonnell were indicted by a federal grand jury in the Eastern District of Virginia. Gov. McDonnell was charged with three counts of honest-services wire-fraud, 18 U.S.C. § 1343, and a related conspiracy count; six counts of extortion under the Hobbs Act by obtaining property under color of official right, 18 U.S.C. § 1951(a), and a related conspiracy count; and two counts of false statements. Mrs. McDonnell was similarly charged. The case was prosecuted by the US Attorney’s Office and the US Department of Justice’s Public Integrity Section.
The charges of honest services fraud and Hobbs Act extortion both rested on the theory that Gov. McDonnell "had accepted bribes from Williams"16 in exchange for taking action in his capacity as a public official. The parties agreed to use the definition of "official act" from the federal bribery statute, 18 U.S.C. § 201, when instructing the jury on the relevant elements of the charged offenses. The bribery statute defines an "official act" as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit."17 Thus, the prosecution had to prove that McDonnell performed or agreed to perform an "official act" in exchange for Williams' gifts (i.e., knowing that the gifts were intended to influence him in its performance).
The trial judge granted the prosecution’s request to instruct the jury that "official acts" included "acts that a public official customarily performs," such as acts "in furtherance of longer-term goals" or "in a series of steps to exercise influence or achieve an end."18 However, the trial judge rejected Gov. McDonnell’s request for a further instruction: that the "fact that an activity is a routine activity, or a settled practice, of an office-holder does not alone make it an 'official act,'" and that "merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, 'official acts,' even if they are settled practices of the official," because they "are not decisions on matters pending before the government."19
In September 2014, after a five-week trial, the jury found Gov. McDonnell guilty on the 11 bribery-related counts, while acquitting him on the false statements counts.20 On appeal, Gov. McDonnell argued that the trial judge’s definition of "official action" was overbroad and would include "virtually any action a public official might take while in office."21 The Fourth Circuit rejected that argument and affirmed the conviction.
The Supreme Court granted certiorari to answer whether "official action" is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.
Gov. McDonnell raised three challenges to his conviction. First, he challenged the district court's definition of "official act" as overbroad. Second, he argued that the honest services statute and the Hobbs Act are unconstitutionally vague. Third, he argued that there was insufficient evidence that he committed an "official act."22 The Court rejected Gov. McDonnell's constitutionality argument and declined to opine on his argument regarding the sufficiency of the evidence, leaving that question for the Fourth Circuit on remand.23 Instead, the Court focused its analysis on what constitutes an "official act."
The Court began its analysis by scrutinizing the bribery statute’s text at 18 U.S.C. § 201(a)(3), to determine whether "arranging a meeting, contacting another official, or hosting an event—without more—can be a 'question, matter, cause, suit, proceeding or controversy,' and if not, whether it can be a decision or action on a 'question, matter, cause, suit, proceeding or controversy.'"24 The Government argued that everyday activities of public officials—ranging from "the typical call, meeting, or event" to broader activities such as "fostering economic development"—qualify as officials acts because each is a "question, matter, cause, suit, proceeding or controversy."25 The Court rejected this argument on two grounds.
First, the Court found that § 201(a)(3)'s reference to a "cause," "suit," "proceeding," and "controversy" did not apply to an ordinary telephone call, meeting, or event, because those statutory terms each referred to a "formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination."26 Turning to the statutory terms "question" or "matter," the Court applied the interpretive canon of noscitur a sociis ("a word is known by the company it keeps") to read "question" and "matter" as formal proceedings akin to a "cause," "suit," "proceeding," or "controversy." As a result, the Court held that an ordinary meeting, call, or event does not qualify as a "question" or "matter."27
Second, the Court found that § 201(a)(3)’s reference to a "decision or action" did not apply to the mere act of arranging a meeting, contacting another official, or hosting an event in connection with some other "question" or "matter." The Court explained that the question or matter being decided or acted upon must be "focused and concrete"—namely "the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete," rather than a generalized goal such as "Virginia business and economic development."28 But even with a suitably specific question or matter, merely hosting an event, meeting with other officials, or speaking with interested parties, without more, is not an "official act" under § 201(a)(3)—as the Court long ago explained in Sun-Diamond.29 Instead, the public official must "make a decision or take an action on that question or matter, or agree to do so."30 For example, in light of ambiguous evidence about whether Gov. McDonnell’s subordinates felt pressured by him to take action,31 the Court suggested that the "decision or action" contemplated by § 201(a)(3) could include a public official’s decision or action "to initiate a research study," "to exert pressure on another official to perform an 'official act,'" or "to provide advice to another official" in order to support another official's "official act."32
Gov. McDonnell argued that his convictions should be vacated because the trial judge improperly defined "official act" for the jury. The Court agreed, holding that the jury instructions were erroneous in three ways. First, the instructions did not adequately explain the scope of an "official act." A proper instruction would have advised the jury that it "must identify a 'question, matter, cause, suit, proceeding, or controversy' involving the formal exercise of governmental power."33 Second, the instructions failed to inform the jury that the "question, matter, cause, suit, proceeding or controversy" must be more specific than "a broad policy objective"—here, Gov. McDonnell’s focus on economic development and job growth.34 Third, the district court failed to inform the jury that in order to convict Gov. McDonnell, it first had to find that "he made a decision or took an action—or agreed to do so—on the identified" official act.35
The Supreme Court held that these errors might have led the jury to convict Gov. McDonnell for conduct that was otherwise lawful. Because the Court could not conclude that the errors were harmless beyond a reasonable doubt, the Court vacated Gov. McDonnell’s conviction and remanded the matter to the Fourth Circuit.36 The Court instructed that the Fourth Circuit should consider Gov. McDonnell’s arguments about the sufficiency of the evidence, in light of the newly clarified definition of "official act." If there is sufficient evidence to allow a jury to convict Gov. McDonnell of committing (or agreeing to commit) an "official act" in exchange for Williams' gifts, the Fourth Circuit may remand the case to the district court for retrial. But if there is insufficient evidence even under the new definition, the charges must be dismissed.37
McDonnell clarifies that routine political favors cannot be the basis of a bribery charge—even, apparently, if a public official performs the favor in exchange for money or some other gift. The decision thus significantly limits the government's ability to bring bribery-related charges without clear evidence that the charged official intentionally took (or agreed to take) action on a specific matter of public policy in exchange for something of value.
McDonnell is the latest Supreme Court decision to reject a reading of public corruption laws that would give prosecutors broad discretion to criminalize commonplace activity, without giving clear guidance to citizens and public officials about what would be illegal. In 1999's Sun-Diamond, a unanimous Court narrowly construed the bribery statute’s definition of an "official act," in conjunction with the statute's lesser-included prohibition on gratuities, to avoid "absurdities" such as "criminaliz[ing] a high school principal's gift of a school baseball cap to the Secretary of Education, by reason of his office, on the occasion of the latter's visit to the school."38 And in 2010, Skilling v. United States limited honest services fraud to bribery and kickback theories, because constitutional vagueness concerns led the Court to "resist the Government’s less constrained construction" of the law that would have criminalized a public (or even private) official's undisclosed self-enrichment.39
McDonnell similarly strove to avoid criminalizing the common interactions between public officials and their constituents, which the Court deemed to be hallmarks of a representative democracy. Swayed by amicus curiae briefs from bipartisan groups of former White House counsel and former state Attorneys General from Virginia and elsewhere, the Court credited the concern that the Government’s "breathtaking expansion of public-corruption law would likely chill federal officials' interactions with the people they serve and thus damage their ability effectively to perform their duties."40
In particular, the Court cautioned that the Government's expansive interpretation of "official act" raised significant constitutional concerns. The Court observed that "conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time."41 As a result, the Court reasoned, the Government's reading of the bribery statute would have chilled efforts to seek and arrange for meetings or other official contacts. This would undermine the "basic compact underlying representative government," which "assumes that public officials will hear from their constituents and act appropriately on their concerns," even after the constituents have "given a campaign contribution" or "invited the official[s] to join them on their annual outing to the ballgame."42
Given the Court's concerns, it finely parsed and strictly interpreted the statutory language, heeding the late Justice Scalia's earlier opinion for the unanimous Court in Sun-Diamond, which cautioned that an ambiguous public corruption statute should reasonably be interpreted as "a scalpel" rather than "a meat axe."43 As lower courts begin to apply McDonnell's guidance and prosecutors consider new charges, the Supreme Court's narrow construction of bribery laws strongly favors drawing clear, realistic lines between conduct that falls within the bribery statute and conduct that cannot—and, as McDonnell makes clear, should not—be charged.
*Preston Smith contributed to this article. Mr. Smith is a American University Washington College of Law graduate employed at Arnold & Porter LLP. He is not admitted to the bar.