Why Bob McDonnell’s Bribery Conviction Should Be Affirmed

One of the most high-profile public corruption cases in the United States in the last couple of years (and alas, there’s some competition for that honor) is that of former Virginia Governor Bob McDonnell—a case that both Rick and Jordan have written insightfully about before. Governor McDonnell was convicted of violating federal anticorruption laws by accepting cash, loans, and lavish gifts from a local businessman, Jonnie Williams, in exchange for helping Mr. Williams secure research studies of his dietary supplement product at state institutions. Governor McDonnell assisted Mr. Williams’ efforts by arranging meetings, recommending that other state officials meet with Mr. Williams about his product (using language indicating that Governor McDonnell supported and encouraged use of the product), and encouraging state officials to arrange for the research studies sought by Mr. Williams.

Governor McDonnell appealed his conviction, and the U.S. Court of Appeals for the Fourth Circuit heard oral arguments in his appeal last week. (I can’t find a written transcript online yet, but you can listen to an audio recording of the argument here.) The governor’s primary argument on appeal is that he did not violate the relevant federal statutes because he did not perform any “official acts” on behalf of Mr. Williams. Interestingly, Governor McDonnell’s appeal has attracted support from a broad range of criminal law experts, including my Harvard Law School colleagues Professor (and retired Judge) Nancy Gertner and Professor Charles Ogletree. Judge Gertner and Professor Ogletree, along with Virginia Law School Professor John Jeffries, filed an amicus brief contending, in essence: (1) the things that Mr. Williams got from Governor McDonnell were not specific government decisions, but rather “access and ingratiation,” which do not count as “official acts,” and which the Supreme Court has said are not corrupt; (2) the broader definition of “official acts” accepted by the trial court (and reflected in its jury instructions) would render the anti-bribery statutes at issue so broad and vague as to violate constitutional Due Process rights.

Judge Gertner, Professor Ogletree, and Professor Jeffries are among the most distinguished criminal law experts in the United States. They have decades of experience practicing and writing about these issues at the highest levels, whereas I’m a comparative novice in this area, with zero practice experience. If they think one thing, and I think another, it would probably be a smart bet that they’re right and I’m wrong. All that said, I disagree quite strongly with the analysis in their brief.

A blog post is not the place to get into a detailed discussion of the nuances of the law, and this issue may seem rather parochial, especially to our non-American readers. But I actually think that the main problems with the Gertner-Ogletree-Jeffries (GOJ) brief stem from an important conceptual confusion that has implications well beyond this case, and perhaps outside of the U.S. as well. So with full recognition that I’m risking personal embarassment in advancing what might turn out to be a misguided critique, let me explain why I found the GOJ brief (and Governor McDonnell’s lawyer’s arguments along the same lines) unconvincing: Continue reading