Lawyers attempt to define “official act” in corruption case

Original: The Cavalier Daily  April 28, 2016

The U.S. Supreme Court heard former Virginia Gov. Bob McDonnell’s appeal of his conviction charges April 27.

Bob and his wife Maureen McDonnell accepted more than $177,000 in gifts and loans from Star Scientific executive Jonnie R. Williams, Sr. in exchange for McDonnell’s promotion of the company’s dietary product, Anatabloc.

Following a six-week jury trial in 2014, McDonnell was charged with 11 corruption convictions and sentenced to two years in prison. His wife was convicted of 9 charges of corruption and sentenced to one year and one day in jail. However, one of her convictions was later thrown out by the trial judge on a charge of obstruction of justice.

McDonnell is accused of attempting to pressure the University to do clinical studies of the dietary product after being bribed by Star Scientific to do so.

Arts & Sciences graduate student Luke William Hunt, an incoming assistant professor of criminal justice at Radford University, said he believes McDonnell’s case is an interesting one.

“Both Democrats and Republicans think it’s overreaching by the government,” Hunt said. “It makes it seem like he’s just sort of getting picked on.”

However, Hunt also said the fact that this case is being taken so seriously is a good thing.

“Perhaps we want to push back a little bit on this sort of politics as usual and this sort of blurring the lines on official acts in exchange for financial support or certain benefits,” Hunt said.

 McDonnell’s attorney Noel J. Francisco argued before the Supreme Court that the jury in the six-week trial had not been properly instructed as to what exactly they were supposed to be finding McDonnell guilty of.

“Legally, you still need to instruct the jury that it had to find that Gov. McDonnell tried to actually influence a government decision,” Francisco told the court. “And here it wasn’t instructed.”

Additionally, Francisco said none of the instances in which McDonnell accepted gifts and money could qualify as being official acts.

“I don’t think any of those things, as they actually came into evidence, demonstrated ‘official acts’ because in none of them did Gov. McDonnell cross that line in trying to influence the outcome of any particular decision,” Francisco said. “And just as critically, the jury was never told it had to find that.”

Much of the case revolved around defining whether an official action is limited to exercising actual governmental power or just threatening to exercise it or pressuring others to use their power.

Deputy Solicitor General Michael R. Dreeben pushed back by saying the line Francisco wanted is one that is “a recipe for corruption, not a recipe for drawing a safe harbor for public officials.”

“I think the message that would be sent, if this court put its imprimatur on a scheme of government in which public officials were not committing bribery when all they did was arrange meetings with other governmental officials, without putting, in his metaphorical way, a thumb on the scales of the ultimate decision, would send a terrible message to citizens,” Dreeben said.

Chief Justice John Roberts, in trying to define an official act, asked Dreeben if he would consider it a felony for a governor to accept an afternoon of trout fishing and discusses official business with a CEO who wants to open a plant in the state but is only able to do so if he receives tax credits from the state.

Dreeben said he did not consider that to be a felony, but if an afternoon of trout fishing was changed to a family vacation to Hawaii — at which time policy would be discussed — that would qualify as a felony.

Associate Justice Elena Kagan clarified with the prosecution that the controversy was “the attempt to get the University of Virginia to do clinical studies of [Star Scientific’s] product.”

Dreeben urged the court to look at the pattern of what McDonnell did and the power McDonnell had over the University, as he was responsible for appointing members of the Board of Visitors and setting the University’s budget as well.

“If you look at the pattern of what he did, directing people to meet with Star’s representatives, arranging events at the mansion in which Star could bring together its chosen guest list, the doctors who it wanted to influence it, the governor is taking every step he can do short of saying to U.Va., do the studies, which his chief counsel told him would be inappropriate, and he wasn’t going to do,” Dreeben said.

Francisco said while both parties agree McDonnell held “bully pulpit authority,” the former governor had little authority over University researchers and did not urge researchers to take any specific actions.

McDonnell’s attorney also said the only time McDonnell had contact with University researchers was at a luncheon held at the governor’s mansion, and witnesses at the luncheon say McDonnell only asked neutral questions.

“He simply asked neutral questions that didn’t try to push the researchers’ decisions one way or another,” Fransisco said.

Throughout the case, several of the justices expressed skepticism at the government’s argument that McDonnell’s actions constituted “official action.”

Roberts took notice of an amicus brief filed by former counsel to Presidents Barack Obama, George W. Bush, Bill Clinton, George H.W. Bush and Ronald Reagan that said “if this decision is upheld, it will cripple the ability of elected officials to fulfill their role in our representative democracy.”

“I think it’s extraordinary that those people agree on anything,” Roberts said, drawing laughter from the courtroom.

Associate Justice Stephen Breyer said his issue with the government’s argument is “the criminal law as the weapon to cure it.”

Breyer said there is a “vagueness problem” with the government’s definition of quid pro quo and a “separations 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,” Breyer 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.”

As the court case came to a close, Dreeben was recognized for arguing this case as his 100th case in front of the Supreme Court. He is the second person to reach that milestone during this century.

Outside, McDonnell thanked family and friends for their support.

The Supreme Court should release its decision in June.