McDonnell fallout could spread to other corruption cases

McDonnell fallout could spread to other corruption cases
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Convicting an elected official on corruption charges just got a lot harder.

Government watchdogs say the Supreme Court’s decision on Monday to toss out the conviction and two-year prison sentence of former Virginia Gov. Bob McDonnell (R) will create new hurdles for prosecutors. 

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“Bribery was already a very tough charge to bring and to prove, and this makes it one level harder than it already was,” said Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington (CREW). 

“Along with having to prove the quid pro quo and factors already there, you now have a situation where an elected official can be getting cash and gifts, and setting up meetings and promoting the payer’s business interests, but unless you can prove this new standard that the official pressured or advised, you can’t get to bribery.”

A quid pro quo — prohibited under anti-corruption laws — is the exchange of a thing of value for an “official act.”

In September 2014, a federal grand jury convicted McDonnell and his wife, Maureen McDonnell, on 11 counts of fraud for having accepted more than $175,000 in gifts and loans from Jonnie R. Williams Sr., then an executive at dietary supplement company Star Scientific. The gifts included a Rolex watch, use of Williams’s Ferrari, dresses and $15,000 to help pay for a wedding reception for the governor’s daughter.

In return, the government said, McDonnell took meetings, held events at the governor’s mansion and contacted staffers to help Williams secure independent testing for a new tobacco-based diet supplement called Anatabloc. 

While prosecutors said those were “official acts” carried out at the behest of Williams, the Supreme Court ruled the lower court gave the jury a definition that was too broad.

In a unanimous decision Monday, the court said under its interpretation, “setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’ ”

“There is no doubt that this case is distasteful. It may be worse than that,” Chief Justice John Roberts wrote in delivering the opinion of the court. “But our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns. It instead is with the broader legal implications of the government’s boundless interpretation of the federal bribery statute.”  

Hampton Dellinger, a partner in the Washington office of Boies, Schiller & Flexner LLP, said the court’s ruling could help defense attorneys fight corruption charges, including in the case against Sen. Bob MenendezRobert (Bob) MenendezPro-Israel organizations should finally seek payback against Iran deal Dems Trump lowers refugee goal to 30,000, he must meet it Blame Senate, not FBI, for Kavanaugh travesty MORE (D-N.J.).

Menendez, the former top Democrat on the Senate Foreign Affairs Committee, was charged with 14 federal counts of corruption last year for accepting gifts and trips from Salomon Melgen, a Florida ophthalmologist, political donor and friend.

In return for the gifts, the Justice Department claims, Menendez helped Melgen get his "foreign girlfriends" visas and avoid fines related to alleged Medicare overbilling. 

Because of the ruling in the McDonnell case, Dellinger said, Menendez’s defense attorneys could now argue that whatever political favors he performed were not “official acts.”

“If his argument prevails, prosecutors would be left with a ‘quid pro’ but no ‘quo’,” he said. “However, [the] McDonnell [ruling] does set forth a very fact-specific inquiry into whether an elected official ‘exerts pressure’ on the ultimate decision maker or not.  So while the decision undoubtedly helps, the senator’s lawyers still have work left to do. “

Menendez has asked a three-judge panel on the 3rd U.S. Circuit Court of Appeals in Philadelphia to throw out his charges. A ruling on that request is expected later this year. 

Some observers said the Supreme Court was right to push back on prosecutors with the McDonnell ruling. 

“To some degree the corruption statutes are overused by overly ambitious prosecutors or even worse by politically motivated prosecutors,” said Curt Levey, a legal affairs fellow at FreedomWorks, a Tea Party group. “Not to say there’s not legitimate cases brought under the corruption statute, but clear cases of corruption are still covered by the statute and will still be brought.” 

While Levey wouldn’t call the court’s decision a blow to prosecutors, he said it serves as a warning.

“I think they have plenty to do enforcing clear violations of the law,” he said. “It’s not their job to be policemen of morals and tawdriness.”

Other experts doubt the ruling will have any impact on corruption cases.

“Prosecutors really have to prove up their case — that’s all it means,” said Stephen Klein, an attorney at the Pillar of Law Institute, a nonprofit focused on protecting free speech from regulatory overreach. “Certainly they had a quid here with the Rolex watch, use of Ferrari. It was all there. The question was what did McDonnell do in return for all that.”

The justices left it up to the lower court to decide whether McDonnell committed any "official actions."