The Court’s narrower interpretation of “official act” under the federal bribery statute creates a higher hurdle for federal prosecutors.
On June 27, the US Supreme Court unanimously vacated former Virginia Governor Robert F. McDonnell’s corruption conviction and erected a higher hurdle for federal bribery prosecutions. The Supreme Court rejected the government’s overbroad definition of the term “official act” in favor of a narrow construction, concluding that arranging a meeting, speaking to another official, or organizing an event—without further action—is insufficient to support a conviction under 18 U.S.C. § 201.
BackgroundIn September 2014, a jury convicted former Governor Robert McDonnell and his wife Maureen McDonnell of bribery charges, including conspiracy to commit honest-services wire fraud and conspiracy to obtain property under color of official right. In addition, McDonnell was convicted of multiple counts of honest-services wire fraud and obtaining property under color of official right. The charges related to McDonnell and his wife’s alleged acceptance of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams during McDonnell’s governorship. At the time, Williams was the CEO of Star Scientific, a Virginia-based company that had developed a nutritional supplement made from anatabine. Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams sought Governor McDonnell’s assistance to obtain those studies.[1]
To successfully prosecute McDonnell, the prosecutors had to show that he committed—or agreed to commit—an “official act” in exchange for the loans and gifts. Section 201(a)(3) defines “official act” 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, or in such official’s place of trust or profit.”
The government alleged in the indictment, and maintained on appeal, that McDonnell committed at least five “official acts,” including “arranging meetings” for Williams with other Virginia officials to discuss Star Scientific’s product, “hosting” events for Star Scientific at the governor’s mansion, and “contacting other government officials” concerning anatabine studies.[2] McDonnell contended that merely setting up a meeting, hosting an event, or contacting an official did not qualify as an “official act,” arguing that his actions were limited to routine political courtesies and never exercised government power on Williams's behalf.[3]
The district court instructed the jury that to convict McDonnell, it had to find that he agreed “to accept a thing of value in exchange for official action.”[4] The district court described the five alleged “official acts” set forth in the indictment, which involved arranging meetings, hosting events, and contacting other government officials. The district court then quoted the statutory definition of “official act” and—as the prosecutors had requested—advised the jury that the term encompassed “acts that a public official customarily performs,” including acts “in furtherance of longer-term goals” or “in a series of steps to exercise influence or achieve an end.”[5] The jury convicted McDonnell of 11 counts of corruption-related offenses.
McDonnell appealed his convictions to the US Court of Appeals for the Fourth Circuit, challenging the definition of “official action” in the jury instructions on the ground that it deemed “virtually all of a public servant’s activities ‘official,’ no matter how minor or innocuous.”[6] The Fourth Circuit affirmed, holding that the district court’s jury instructions were appropriate. The main issue on appeal to the Supreme Court was the proper interpretation of the term “official act” under Section 201(a)(3).
HoldingIn an opinion by Chief Justice Roberts for a unanimous Court, the Supreme Court vacated and remanded the Fourth Circuit judgment, adopting a narrower interpretation of the term “official act.” According to the Supreme Court, an “official act” is “a decision or action on a ‘question, matter, cause, suit, proceeding or controversy’” that “must involve 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.”[7] In addition, the act must be “something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.”[8] A “decision or action may include using [one’s] official position to exert pressure on another official to perform an ‘official act,’ or to advise another official, knowing or intending...
