If former Virginia Governor Robert McDonnell is certain of anything, it’s that he never actually abused the powers of his office for the benefit of Jonnie Williams. Forget about the $170,000 or so in loans and gifts Williams extended to Virginia’s first family; “McDonnell’s last line of defense,” as Rick has noted, “[is] that the favors he did for Williams were not part of his official duties as governor.” In other words, McDonnell believes that his influence peddling on behalf of Williams — in return for Williams’s financial “assistance” — did not amount to “the performance of an official act,” as required by federal bribery law.
Unfortunately for McDonnell, the judge overseeing his trial disagreed and refused to instruct the jury — as McDonnell had requested — that “merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, ‘official acts.’” Instead, Judge Spencer adopted the prosecution’s understanding that federal bribery law encompasses quid pro quo arrangements involving the performance of either (1) a public official’s statutory duties or (2) those settled practices “‘that a public official customarily performs’ even if they are not prescribed in law.” Not to be deterred, the former Governor thinks he has a strong case for challenging this instruction on appeal. Here’s why he’s wrong.
As the Fourth Circuit — which will hear McDonnell’s appeal — has noted, the Supreme Court decided in 1914 that the term “official act” in federal bribery law encompasses “duties not completely defined by written rules” but that are nonetheless “clearly established by settled practice.” What exactly does this mean? Well, it means that McDonnell is on the hook for any action that (1) he took on behalf of Williams, (2) in exchange for Williams’s financial largesse, and that (3) was customary of his gubernatorial office and (4) related to “any question, matter, cause, suit, proceeding or controversy” actually or potentially pending before his office.
Fortunately for the government, each of the four factors maps well onto McDonnell’s reported conduct:
- McDonnell undoubtedly acted for Williams’s benefit when he promoted the latter’s company and products;
- Substantial evidence corroborated a close temporal connection between instances of Williams’s largesse and McDonnell’s actions promoting Williams’s company;
- Prosecution witnesses gave lengthy testimony arguing that McDonnell’s actions touched upon duties customary of his office, including hosting events for constituents and industry, directing the priorities of state executive officials, and asking state officials to intervene in research decisions being made by the state’s public universities; and
- McDonnell’s actions apparently related to several matters — including research by state institutions, state employee health insurance plans, and product licensing issues — that were actually or potentially pending before his office. For example, it is hard to see how McDonnell’s decision to ask state human resources personnel — during an official meeting — whether the health insurance plan for state employees could cover Williams’s pill did not relate to a matter pending before his office.
Notwithstanding this precedent, McDonnell has offered up a much narrower reading of federal bribery law, one that restricts “official actions” to those core functions of the pertinent public office that relate to the exercise of decisional authority by the government, including the award of state contracts, conferral of economic incentives, or appointment of state officers. In McDonnell’s view, merely lending the weight of the Governor’s Office to a constituent businessman-in-need did not, without more, amount to an unlawful “quid” given for Williams’s “quo”. In support, McDonnell turns to cases such as United States v. Sun-Diamond Growers and Valdes v. United States, which he insists make clear that there are certain acts — like public appearances, speeches, or moonlighting with government resources — that, while official in some sense, are not “official acts” within the meaning of the federal bribery statute.
To a limited extent, McDonnell is correct: the Supreme Court made clear in Sun-Diamond that not every action taken by a public servant in his or her official capacity falls within the scope of the statute. That is why it isn’t illegal — under either the federal bribery statute or its lesser-included cousin, the illegal gratuity statute — for a politician to accept gifts given purely in recognition of his or her office or as thanks for speaking to an industry group.
At the end of the day, though, McDonnell’s broader argument is likely to be viewed with suspicion by the panel that takes up his appeal. The primary reason is that the Fourth Circuit’s 2012 decision affirming the conviction of former Congressman William Jefferson seems largely on point. There the court upheld Jefferson’s conviction for receiving bribes in exchange for performing constituent services (a “settled practice” of a congressman) related to trade in Africa (matters that were, broadly speaking, pending before Jefferson in given his traditional role in promoting U.S. trade with Africa). If McDonnell really thinks he has a case to make, he’ll surely have to explain how the Fourth Circuit could fault Jefferson (for scheduling meetings and vouching for the bribers’ business bona fides) but nevertheless let the former Governor off the hook. That’s a rather unenviable burden to bear, and if I were in his shoes, I wouldn’t hold my breath.