A Victory for the Government, Justice, and Common Sense, in the Bob McDonnell Appeal

Over the past year, we had a few posts (from Jordan, Rick, and myself) about former Virginia Governor Bob McDonnell’s appeal of his federal bribery convictions. All of us took the position that McDonnell’s main argument on appeal—that his actions on behalf of a local businessman were not “official acts” (and that the loans and lavish gifts this businessman provided were merely for “ingratiation and access”)—was inconsistent both with the governing law and with the facts as presented in the trial record. (Lots of people, though, including two distinguished criminal law experts on my faculty, took the contrary position.) The issue is important not just for U.S. political and legal junkies, but also because the McDonnell appeal raises more general issues about how we think about the line between illegal corruption and legal (though perhaps sleazy) political wheeling & dealing.

As many readers are no doubt aware, the Court of Appeals for the Fourth Circuit decided the case earlier this month. And while courts don’t always get it right, this time they did: The three-judge panel unanimously rejected all of McDonnell’s arguments, and cogently explained why in this case the evidence was more than sufficient to support a corruption conviction. Indeed, while there are indeed hard questions about the appropriate line between legal and illegal forms of private influence on public officials, the McDonnell case was not even particularly close to that line.

A few quick observations about the Court of Appeal’ opinion:

Perhaps most significantly, in clarifying the line between lawful ingratiation and unlawful bribery, the court helpfully and correctly emphasized that the “official act” provided by the public official has to satisfy several distinct criteria. First, the act has to be sufficiently “official”—the government agent has to be acting in his or her public as opposed to private capacity. However, as prior cases had established, an act can be “official” even if it doesn’t involve a formal exercise of the legal duties of the office. However, in order to qualify as an “official act” of the sort covered by the relevant anticorruption laws, the public official’s conduct must also entail (1) a decision or action (including the exertion of influence) with respect to (2) a specific matter, proceeding, or controversy. As the court put it:

[T]he reach of [the statute] is broad enough to encompass the customary and settled practices of an office, but only insofar as a purpose or effect of those practices is to influence a “question, matter, cause, suit, proceeding or controversy” that may be brought before the government.

And then later in the opinion:

[The statute] requires an intent to have the public official “take specific official action on the payor’s behalf.” (emphasis supplied)…. [A]n official action necessarily entails some particular type of act within the parties’ contemplation at the time of the exchange.

These additional requirements are important (and well-grounded in existing U.S. law), because they supply the answer to the argument advanced by McDonnell (and his supporters) that the government’s theory in this case would criminalize all sorts of customary activities on behalf of campaign donors and others (such as arranging meetings, making introductions, and hosting events) as well as the receipt, by government officials, of gifts or meals provided by government officials when visiting or giving speeches to various groups or institutions. So, pro-McDonnell camp reasoned, we need to narrow the definition of “official acts” so that it simply does not include things like arranging meetings, hosting events, encouraging subordinates or other government employees to take action, etc. Otherwise, this argument continues, we would be “criminalizing politics.” Not so, says the government (and the Court of Appeal): Even if these acts are “official,” they do not involve the government official attempting or purporting to influence the outcome of a specific matter. Those other criteria supply the limiting principle that prevents the government’s expansive definition of “official acts” from sweeping unreasonably broadly.

Again, these points are relevant not just to U.S. law (though the clarification is certainly helpful for American lawyers and others), but also because these principles may be useful in thinking about how to draw the line between permissible horse-trading and impermissible corruption in other contexts as well.

A couple other features of the opinion merit brief comment:

First, as to whether, in this particular case, the above criteria were satisfied, the Court of Appeals had no trouble concluding that they were, and indeed the record provides ample support for that conclusion:

[T]he Government presented evidence of three questions or matters within [Governor McDonnell’s] sphere of influence. The first of these was whether researchers at any of Virginia’s state universities would initiate a study of Anatabloc [the product produced by the company owned by the businessman who had provided Governor McDonnell with gifts and loans]. The second was whether [a state commission] would allocate grant money for the study of [the active ingredient in Anatabloc]. The third was whether the health insurance plan for state employees in Virginia would include Anatabloc as a covered drug.

These were all government matters, and Appellant, as head of the Commonwealth’s government, was in a prime position to affect their disposition.

Second, the court emphasized that in order to secure a conviction, the government also had to prove that Governor McDonnell acted “corruptly,” and further that if the Governor could show that he was acting in good faith, then he was not guilty. As the court put it, Governor McDonnell “was … free to argue that he believed in good faith that any ingratiation or access he provided Williams was entirely proper. If the jury believed that, it would have had no choice but to acquit him.” This is important because it provides another firebreak against the admittedly broad conception of “official acts” would criminalize what we think of, for better or worse, as “ordinary” politics, or would put all politicians in constant danger of inadvertently committing a felony.

The case is not necessarily over yet. McDonnell has already asked for a rehearing before all the judges of the Court of Appeals for the Fourth Circuit, and if that fails (which is likely) he can seek review by the U.S. Supreme Court. But by my lights, the Court of Appeals panel in this case did an admirable job not only of resolving this case, but of explaining the contours of U.S. bribery law more clearly and of putting to rest hyperbolic warnings about the logical consequences of the government’s position.

3 thoughts on “A Victory for the Government, Justice, and Common Sense, in the Bob McDonnell Appeal

  1. Thanks for a nice summary of the very long, and not always easy to follow, opinion. The court’s observation that McDonnell could have offered evidence that he acted in “good faith” is a reminder of one thing many observers found particularly striking: his failure to produce a letter from an ethics attorney showing he had obtained legal advice. Hard to imagine any public official in today’s ethical climate would not have. One suspects McDonnell did not produce a letter either because he had gotten one and it advised “don’t do it” or he feared that if he did get a letter it would advise against accepting the gifts showered on him.

    The case also points out the value of creating a system where public officials in doubt about whether proposed conduct is ethical or legal can seek an advisory opinion from an ethics agency. An opinion saying the conduct is proper, or at least not unethical, will, either as a legal or a practical matter, shield the official from prosecution later (assuming all facts were accurately and fully disclosed in requesting the opinion).

    • Very useful points. Note that this all presumes that we have a bar characterized by a relatively high degree of integrity, impartiality, and trustworthiness. If we were in a situation where it would be relatively easy to find a lawyer who would give a letter of approval for just about anything, then presumably courts and juries would be much less likely to credit such a letter as showing the client’s good-faith belief that the conduct was lawful.

  2. Pingback: Columbia Law School Proxy Debate on McDonnell’s Bribery Appeal | Anti Corruption Digest

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