Last month, the Supreme Court granted former Virginia governor Robert F. McDonnell’s request to hear his case. McDonnell was convicted in 2014in federal district court, along with his wife, for intervening with state officials on behalf of a political supporter who had contributed close to $180,000 in loans, vacations, and luxury goods to the former governor. McDonnell filed an appeal to the Fourth Circuit, which upheld his convictions. In granting certiorari, the Supreme Court limited its focus to the first question posed in McDonnell’s certiorari petition, namely:
“Whether ‘official action’ under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.”
The Supreme Court will likely hold arguments on the matter in April, with a decision coming by the end of June. The granting of certiorari in McDonnell’s case is significant because it signals that at least four justices on the Supreme Court believe that federal public corruption laws are worth reconsideration.
In particular, McDonnell argues that his actions on behalf of a political supporter did not constitute an “official act” under the statute, and thus he should not have been found guilty of corruption. The Supreme Court will likely be forced to determine whether to give a narrow or a broad reading to the meaning of “official acts” and the decision could have significant effects on public corruption and bribery cases across the country.
Indeed, since the Supreme Court granted certiorari in January, at least one high-profile case has taken notice, as defense lawyers for Anthony Burfoot, former vice mayor of Norfolk, Virginia, has requested to delay his public corruption trial until after the Supreme Court rules in the McDonnell case.
Adding another wrinkle to the case, the death of Justice Antonin Scalia earlier this month may further complicate McDonnell’s case. As Tom Jackman of the Washington Post put it, “the absence of Scalia almost certainly means one less vote on the court for McDonnell’s view that prosecutors misinterpreted the public corruption statute.” Indeed, Scalia “had written opinions that were right for McDonnell and argued for a narrower interpretation of ‘official acts’.”
Going forward, the Supreme Court has several options. First, if the justices deadlock 4 to 4, they could decide to rehear the case when a ninth justice is appointed. Second, if the court deadlocks 4 to 4, it could decide to let the 2015 affirmation of McDonnell’s sentence stand. Third, the court might not deadlock at all and decide the case for or against McDonnell with just eight justices. Or fourth, it could void its decision to accept the case in the first place, even after briefings and oral arguments.
Whatever the Supreme Court decides regarding the McDonnell case will undoubtedly have a long-lasting and wide-ranging effect on public corruption and bribery cases all over the country.
- The Washington Post, “McDonnell’s Case Might Help Others Accused of Corruption,” January 29, 2016, available at: https://www.washingtonpost.com/local/public-safety/how-bob-mcdonnell-might-help-others-suspected-of-public-corruption-go-free/2016/01/29/d3e6eb9e-bf96-11e5-bcda-62a36b394160_story.html (last visited March 3, 2016).
- The Virginia Pilot, “Anthony Burfoot’s Attorney Wants Corruption Trial Postponed Until After Supreme Court Rules on McDonnell,” February 23, 2016, available at: http://pilotonline.com/news/local/crime/anthony-burfoot-s-attorney-wants-corruption-trial-postponed-until-after/article_7ca5682e-1c84-56ac-9ab0-b76093e920d9.html (last visited March 3, 2016).
- Washington Post, “Will Scalia’s Death Spell Doom for McDonnell’s Appeal? Not Necessarily.” February 18, 2016, available at: https://www.washingtonpost.com/local/public-safety/will-scalias-death-spell-doom-for-mcdonnells-appeal-not-necessarily/2016/02/18/f0ea938a-d5b2-11e5-be55-2cc3c1e4b76b_story.html (last visited March 3, 2016).