Late last week the United States Supreme Court agreed to take up former Virginia Governor Bob McDonnell’s appeal from his 2014 conviction in a widely followed public corruption prosecution. The outcome of this appeal could have far-reaching consequences for the way in which public officials conduct business and for the types of public corruption prosecutions that can be brought by the United States Justice Department.
In September, 2014, a jury sitting in the United States District Court in Richmond, Virginia convicted Governor McDonnell and his wife on corruption charges as the result of their acceptance of more than $175,000 in gifts and loans from Jonnie R. Williams, Sr., then the head of Star Scientific, in exchange for promoting the company’s dietary supplement.[1] In that trial, the jury was instructed that the Governor could be found guilty of the charges – both the honest services counts and the Hobbs Act counts – if he accepted something of value in exchange for agreeing to perform “official actions.” The Court defined “official actions” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity.”[2] The trial judge added that “official actions” can also include those actions that a public official would “customarily perform” in addition to those duties assigned him by law and that he need not have actual or final authority over the end result sought by the payor if the payor reasonably believed that the public official had some influence, power or authority over a means to that end. Finally, the trial court also advised the jury that the illegal act can be merely one step in a series of steps to achieve the desired end.
The Fourth Circuit Court of Appeals reviewed the trial court’s jury instructions and found no fault with them. Moreover, the court declined to limit the definition and allowed that “official actions” need not be defined by statute, written rule or regulation, but may include any action that the public servant customarily performs, so long as it relates to a “pending question. . . . , matter, cause, suit, proceeding or controversy.”[3] In sum, the Court of Appeals gave a green light to the Government’s far-reaching approach to the question of what constitutes an “official action.” For a fuller discussion of the Court of Appeals decision, please see our analysis here.
Governor McDonnell’s attorneys, as well as the 60 former Attorneys General and the host of former federal officials filing amicus briefs, argue that the trial court’s definition of “official actions” is entirely too broad. They seek to limit the definition to those matters that involve “an exercise of actual governmental power, either directly (for example, voting on legislation or awarding a contract) or indirectly (such as pressuring another official to vote a certain way or grant a contract to a particular party).”[4] Short of that definition, the parties argue, a public official has no reliable gauge...
