The Supreme Court on Wednesday appeared reluctant to uphold former Virginia Gov. Bob McDonnell’s (R) conviction on corruption charges and his two-year prison sentence.
Chief Justice John Roberts argued that endorsing the federal government’s broad definition of an “official action” in prosecuting corruption could cripple the ability of elected officials to perform their duties.
A federal grand jury in September 2014 convicted McDonnell and his wife, Maureen, on 11 counts of fraud. The couple had accepted more than $175,000 in gifts and loans from Jonnie R. Williams Sr., an executive at the dietary supplement company Star Scientific. The gifts included $15,000 for their daughter’s wedding reception.
The government argues that McDonnell took meetings with Williams, hosted events at the governor’s mansion and contacted staff in an effort help William’s secure independent testing for a new tobacco-based diet supplement called Antabloc.
But under the government’s definition, Roberts said a governor could be found guilty of a felony even if he goes trout finishing with a state businessman and they discuss the possibility of tax credits while their lines are cast.
Michael Dreeden, the attorney for the administration, pushed back on that argument. When the meeting changes from trout fishing to an expenses paid trip to Hawaii for your family, it becomes more nefarious, he said.
“Perhaps what you’re talking about is how evil the conspiracy is,” Justice Anthony Kennedy said. “It’s not evil to fish or have a bottle of wine, it is evil if you up the ante — is that what you’re saying?”
Justice Stephen Breyer grappled with how the court should define official actions.
“I appreciate your help on what the right words are, and I'll tell you right now if those words are going to say when a person has lunch and then writes over to the antitrust division and says, I'd like you to meet with my constituent who has just been evicted from her house, you know, if that's going to criminalize that behavior, I'm not buying into that.”
If the court sides with the federal government, Breyer argues that politicians won’t know what they’re supposed to do and what they’re not supposed to do, which could create a separation of powers problem.
“The Department of Justice in the Executive Branch becomes the ultimate arbiter of how public officials are behaving in the United States, state, local and national,” he said. “And as you describe it, for better or for worse, it puts at risk behavior that is common, particularly when the quid is a lunch or a baseball ticket, throughout this country.”
But the court’s more liberal members seemed unconvinced that McDonnell should be let off.
“The question is what was his intent at the moment he took the money?” asked Justice Sonia Sotomayor. “Why couldn’t the jury infer at that moment that he took it with the intent to commit an 'official act' the way Mr. Williams wanted it committed?”
Even assuming that the jury could have inferred he took the money to commit an official act, McDonnell’s attorney Noel Francisco said the jury would need to be told what an official act is.
“I don't think any of those things, as they actually came into evidence, demonstrated official acts because in none of them did Governor McDonnell cross that line in trying to influence the outcome of any particular decision,” she said. “And just as critically, the jury was never told it had to find that.”
Sotomayor asked Francisco what the court is supposed to do with the evidence that shows medical researchers felt pressured by McDonnell to study Williams's new supplement.
“There is both testimony and documents in which the pros and cons of accepting these studies were discussed,” she said. “And in the pro and con, it was, 'The governor really wants us to do this. The governor is pressuring us to do this. We just don't think it's a good idea.' "
In August, the court issued an order allowing McDonnell to remain free while it considers his appeal of a lower court decision that upheld his conviction.
The conviction was a stunning downfall for McDonnell, who was on 2012 GOP nominee Mitt Romney's vice presidential shortlist and once seen as a potential 2016 contender.
McDonnell addressed reporters outside the courtroom after oral arguments ended Wednesday.
“I’m incredibly grateful to the Supreme Court of the United States for accepting the case and the attention that they’ve given it, and I’m exceptionally grateful to my family and friends and the numerous bipartisan coalition of amici across the country that have joined in supporting our legal cause today,” he said, according to a video posted on Facebook by The Virginian-Pilot.
“I want to say as I’ve said for the last 39 months, that never during any time in my 38 years of public service have I ever done anything that would abuse the powers of my office.”
The Supreme Court is likely to decide the case in June.
This story was updated at 1:12 p.m.