June 27, 2016

The ex-governor of Virginia, Bob McDonnell, gets his conviction overturned by the Supreme Court — unanimously.

SCOTUSblog reports:
An official act in the statutes at issue is a decision or action on a question, matter, cause, suit, proceeding or controversy.... That question or matter must involve a formal exercise of governmental power and must also be something specific and focused -- that is, pending or may by law be brought before a public official. To qualify as an official act, the public official must make a decision or take an action on that question or matter, or agree to do so.... Given the court's interpretation of official act, the district court's jury instructions were erroneous, and the jury may have convicted Governor McDonnell for conduct that is not unlawful. Because the errors in the jury instructions are not harmless beyond a reasonable doubt, the Court vacates Governor McDonnell's convictions.
Here's the opinion PDF.

ADDED: The facts, as summarized by the Chief's opinion:
In 2014, the Federal Government indicted former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell, on bribery charges. The charges related to the acceptance by the McDonnells of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies.
The issue was what counted as an "official act" within the statutory law, and the Court said the government's "expansive interpretation" might have violated the Constitution:
In the Government’s view, nearly anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and nearly anything a public official does—from arranging a meeting to inviting a guest to an event— counts as a quo. See Brief for United States 14, 27; Tr. of Oral Arg. 34–35, 44–46.

But conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.
AND: SCOTUSblog observes that the opinion does not cite the campaign finance cases such as Citizens United, which were extensively discussed in the briefs. I'll just speculate that's because the Court got it together for a unanimous opinion. I like it, the one-opinion unanimity.

70 comments:

Matthew Sablan said...

But where does he get his reputation back?

Matthew Sablan said...

If setting up meetings is an official enough act to count as bribery, then... a lot of people, on both sides of the aisle, should be in jail.

Kristian Holvoet said...

Or his job?

Achilles said...

Poor guy got a couple trips to the bahama's and some free meals totaling $165,000. Hillary made more than that in one speech to Goldman Sachs Or a Russian Oil magnate.

ndspinelli said...

He was a Republican. He had no reputation. If he were a Dem he would be inserted on Mt. Rushmore.

Matthew Sablan said...

To be technical: "If the court below determines that there is sufficient evidence for a jury to convict Governor McDonnell of committing or agreeing to commit an “official act,” his case may be set for a new trial. If the court instead determines that the evidence is insufficient, the charges against him must be dismissed. We express no view on that question."

So, we'll get to do this all again. Hooray.

coupe said...
This comment has been removed by the author.
Michael K said...

Senator Ted Stevens could not be reached for comment.

I Callahan said...

But where does he get his reputation back?

Matt stole my thunder!!!

That aside - this is a Ted Stevens type situation. Throw mud against the wall and hope it sticks until it doesn't need to stick anymore. Not just his reputation, but how about some justice? Where does he go to get a scalp, because he deserves it.

Amadeus 48 said...

The ultimate laugh: the Dem insider who succeeded McDonnell because of this improper prosecution (he squeaked in in 2013) is Terry McAuliffe, a former Clinton bagman who really should be in jail.

ndspinelli said...

Amadeus, He's under Fed investigation.

Nonapod said...

He accepted the quid but didn't provide any quo.

As people have already pointed out, as far as corruption it's pretty trivial in the grand scheme, especially compared to people like the Clintons. Not that that makes it OK of course.

YoungHegelian said...

I'm glad to see this. I always thought that Gov. & Mrs McDonnell's convictions were more than a little fishy. As the SCOTUS ruling points out, the law's application was too broad. This was just some guy with a small business trying to get a break via the state government. It wasn't the "Captains of Industry" owning the state or nuthin'.

Gov. McDonnell had to take his case to the SCOTUS. All those clowns who brought us the 2008 Wall Street meltdown? Not a one of them ever faced any charges. The lesson here: don't be Republican in public.

Basil said...

This is the Ted Stephens/Tom Delay method of Democrat governance. Attack a Republican officeholder with trumped up charges. Pick a local jury and/or hide exculpatory evidence. Get office holder out of office. Convictions or charges overturned. Damage done to the person and the career of the Republican office holder.

"What difference, at this time, does it make? Says the Democrat.

And no reforms to reign in these prosecutors ever happens.

David Begley said...

1. Hillary's lawyers studying this case right now. She performed plenty of official acts for money. Money paid to her or Bill.

2. Four federal judges and all of their law clerks absolutely and unanimously got wrong the meaning of "official acts." Eight to zip.

AprilApple said...

Meanwhile, Hillary's crimes are worse.

cubanbob said...

The Clinton's are quietly rejoicing.

AprilApple said...

The corrupt left put McDonnell in jail.

The corrupt left keep Hillary out of jail.

traditionalguy said...

The Criminalization of politics is the high end version of the Dem/Progs " We need a little muscle over here" game. It is an attacking approach to political speech after election.

Will the Feds indict Trump for breaking the rules of golf next?

AprilApple said...

cubanbob - Why? Clinton's crimes are actual crimes.

I suppose they would be happy because Hillary can say - "see - he's a crook, I'm a crook, it doesn't matter!" or something.

AprilApple said...

McDonnell was given gifts he shouldn't have accepted.


Mrs. Clinton enriched herself and her family's foundation by selling access and favors to the highest bidder while she was Secretary of State - doing it all through a private server. She also opened herself up to blackmail by using an non-government sanctioned e-mail system.

Chuck said...

traditionalguy:

I like the way you think. Up to a point. Oh yeah you are so right about the criminalization of politics, by the Left. You could even say they have been in the business of trying to criminalize speech.

But Donald Trump, nearly alone in all of Republican politics, has been grousing about Citizens United and "campaign finance reform" and "donors." I put "campaign finance reform" in scare quotes not because it is something that Trump said. I don't think Trump knows more than 140 characters' worth about the entire subject. Rather, I think "campaign finance reform" is about as useful a phrase as "assault weapon."

~ Gordon Pasha said...

So applying this logic getting a pencil from a drug rep is not necessarily a quid that will result in a quo for the medication that is emblazoned on the side of the pencil. Waiting for Big Pharma rules to be abolished.

David Begley said...

April

Both McDonnells were out of jail pending the decision.

Amadeus 48 said...

Chuck--Cheer up. Trump may not win. Then we'd get Hillary and a SCOTUS that will give new dimensions to the concept of "Compliant."

Good times ahead for Dems. The party is just beginning.

Bad times ahead for people who just want to be left alone by the government.

AprilApple said...

Ok -were they ever in jail at all?

eric said...

This seems like yet another political decision by SCOTUS.

For the Democrats it's a no brainer. The damage has already been done to the Republican. What's the point in continuing if you might hurt Hillary too? On the other hand, if you make it clear that this sorts thing isn't illegal, you create a meme in the media to say Hillary didn't do anything wrong, just like the Republican governor of virginia. It's a win win.

For the Republicans, well, they are probably following that pesky document called the constitution.

MadisonMan said...

I agree that this is a gift to Hillary.

Chuck said...

I had somehow forgotten that the McDonnell case was a federal Hobbs Act prosecution. Not a state prosecution (as I had somehow misremembered) and not a McCain-Feingold (BCRA) Act case.

8-0 is really something. A federal prosecution, out of a District Court where the trial judge, in a jury trial, was a Reagan nominee. The Fourth Circuit upheld the conviction, unanimously, and then unanimously denied a rehearing and an en banc hearing.

I am not sure I recall any more comprehensive turnaround in the fortunes of a defendant.

Huge props, to the Wall Street Journal editorial board, for calling this one back in April:

http://www.wsj.com/articles/politics-is-not-a-crime-1461712254

rhhardin said...

In the Government’s view, nearly anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and nearly anything a public official does—from arranging a meeting to inviting a guest to an event— counts as a quo.

Counts as a quid. Quo is ablative.

SteveR said...

For the purposes of turning a purple state blue, the conviction, however short lived, was justifiable. Nothing like turning a blond republican woman into a villian.

The Drill SGT said...

The wife took the bulk of the gifts, but of course had no ability to perform official acts.

The Governor took some minor gifts, and his official acts turn out to be nada.

The irony of course is that this was a Federal case because there isnt any Virginia law they could charge him with.

PS: (D) Terry McAuliffe won by 2% (47-45) in a 3 person race because of the McDonnell case.

Matthew Sablan said...

"PS: (D) Terry McAuliffe won by 2% (47-45) in a 3 person race because of the McDonnell case."

-- I'm half expecting "famous Republican is evil and on trial" to happen in races from here on out, because let's face it, it works.

The Godfather said...

Do the same principles apply to payments to Hillary! while she was SOS, or is it different because she didn't hold an elective office and didn't have constituents?

fregen said...

Raymond Donovan, Ted Stevens, Tom Delay, Bob McDonnell: Is anyone seeing a pattern here?

The Drill SGT said...

fregen said...
Raymond Donovan, Ted Stevens, Tom Delay, Bob McDonnell: Is anyone seeing a pattern here?


Or the flip side, the (D)'s can be convicted and still be elected...

james conrad said...

This is starting to be a habit, democrat prosecutor's filing charges in state and federal courts as a political weapon. If this is allowed to continue, the net effect will be to nullify the credibility of the judicial system in general. Bad news all around.

Matthew Sablan said...

Didn't they also try Perry for some nonsense?

Yancey Ward said...

If he were a Dem he would be inserted on Mt. Rushmore.

Or running for president.

Yancey Ward said...

Eric, above, points out why this decision was 8-0. The liberal justices know what it is they are getting for that decision- some cover for Hillary Clinton and Bill Clinton.

dreams said...
This comment has been removed by the author.
dreams said...

Watergate is when the Dems started the criminalization of politics and the liberal media aided and abetted the real crooks, the Dems.

Gahrie said...

Another sad example of Leftist lawfare.

Ann Althouse said...

"Poor guy got a couple trips to the bahama's and some free meals totaling $165,000. Hillary made more than that in one speech to Goldman Sachs Or a Russian Oil magnate."

You need to punish her politically. Over criminalizing is a solution worse than the problem.

james conrad said...

Over criminalizing is a solution worse than the problem.

Amen

Bay Area Guy said...

Now, Governor Robert McDonnell

Then,
Senator Ted Stevens

Governor Rick Perry

Representative Tom DeLay

Hmmm? Any pattern? Any trend line?

Bay Area Guy said...

Oops, Fregen beat me to it. Hattip to him/her.

David Begley said...

How can Hillary be punished politically when the MSM refuses to investigate her other than the book "Clinton Cash?"

Many people don't know the depth of Hillary's bribery scheme. Hard to understand. Foreign countries involved.

AprilApple said...

Glenn R sums it up perfectly.

"Well, the whole point was to turn Virginia over to the Clinton machine before 2016, and with that accomplished there’s really no reason to proceed."


Now that the Clintons and her media successfully planted us with Trump, it's almost complete.

Birkel said...

It was not mainly conservatives or libertarians who overcriminalized the federal law, although Republicans deserve blame w/rt drug laws.

That is your preferred party, Althouse.

David Begley said...

By law, VA governor limited to ONE term. One of the few in America.

dreams said...

"My opinion of the Left is not high, but I never imagined I would live to see the day when one of America’s principal parties would try to criminalize disagreement on a political issue."

http://www.powerlineblog.com/archives/2016/06/democratic-party-officially-opposed-to-free-speech.php

Richard Dolan said...

The result was foreshadowed at the argument, but the opinion leaves a lot to be desired. The Court was concerned about the impact of the Gov't's theory of liability on the processes of representative democracy -- anything a public official does (on the Gov't theory) was "official action," so that any benefit received by a public official was enough to trigger criminal liability. But we expect public officials to be responsive to the citizenry, and grateful citizens often support the public officials who have helped them. The Court tried to make sure that an overbroad reading of the Hobbs Act didn't effectively make the routine practice of politics in our democracy a crime whenever any prosecutor decided to call it one.

So far, so good. But this is an area that calls for a clear line between acceptable politics and bribery. The Court didn't provide one, since it said that the things that were insufficient here (arranging meetings, holding events, making calls), could be sufficient in another case, and that the close cases have to be sorted out be a properly instructed jury. That's the opposite of a clear line.

Better this result than an affirmance. But this decision still effectively leaves federal prosecutors with far too much power to intimidate elected officials, particularly since a prosecutor's exercise of that power is both completely discretionary and subject to no outside review. It is very cold comfort to anyone targeted in a prosecution like this to say, not to worry, you've got a great appeal. The larger message of this decision is that, among the many problems with the American criminal justice system, the concentration of power in the hands of the prosecutors has gone way overboard, and needs to be subjected to outside control.

Unknown said...

Ann Althouse said...

You need to punish her politically. Over criminalizing is a solution worse than the problem.

6/27/16, 12:11 PM

So you mean, assassinate her.

I had hoped we would keep the social contract going through my parents' lifetime but if you say it is time to start the mill...after all, it really has, just that one side hasn't been fighting back.

damikesc said...

So you mean, assassinate her.

You read "punish politically" and you go to "assassinate"?

And people think Progs are violent...cannot figure out why.

traditionalguy said...

The right to a jury trial was basic in the Magna Carta because an absolute Monarch in England and his friends once did use the Criminalizing of politics every day. Habeas Corpus was just as needed once.

Those safeguard can be worthless if the new subservience of Jurors to politicized Fed Prosecutors is not ended. Maybe these cases all need an automatic change of venue granted from the Blue States that are so well organized by Obama's corruption.

But both parties will use this tactic when possible.

james conrad said...

There is a report/rumor flying around that the Dem platform committee is considering a plank where the DOJ would investigate counter arguments to the climate change debate. If true, this is another instance of using the criminal justice system as a political weapon and if not corrected, would absolutely lead to armed men in the street. This kind of behavior needs to be nipped in the bud, as Barney would say, before it gets outa hand.

David said...

Hillary Clinton checks teleprompter, reads words "Sigh of Relief."

David said...

Richard Dolan said...
"[T]his is an area that calls for a clear line between acceptable politics and bribery. The Court didn't provide one . . . "

Nor should it have. It's the legislature's job to do this, if it needs to be done. I'd rather have legislators do it for many reasons, not the least being that they have to live with the result. The Court made it clear that the prosecutors had done a terrible job of discerning the line. I'm not clear why appointed for life judges would be any better than elected officials, and I can think of lots or reasons why they would be worse, wholly apart from the separation of powers issue.

Richard Dolan said...

"Nor should it have. It's the legislature's job to do this ..."

Statutory interpretation is the least controversial thing the SCOTUS does (whether or nor they get the quiz right), and cannot possibly be avoided in deciding any case arising under a federal statute. If Congress disagrees with the result or wants to change the statute, it can do so at any time. But the Court has to apply the statutes in front of it, almost all of which are phrased in general but undefined terms (like the Hobbs Act in this case). In applying the statute, the Court has to interpret those terms so that (for example) the jury can be charged as to what it is supposed to find. In doing so, the Court can adopt a reading of the statutory terms that provides clarity rather than fuzziness. Especially in applying criminal statutes, clarity is much to be desired (and there are many rules of interpretation that point in that direction).

PatHMV said...

Other than the obvious partisanship disadvantage faced by Republican officials in these cases, I'm not understanding the rush to defend McDonnell here. I'm certainly against overcriminalization, but I'm also in favor of honest political officials, doing their jobs for ME, not for people willing to pay them for "introductions" or whatever.

I've worked in government for a long time now, in many different capacities (including prosecuting corrupt political officials). Governors can put a massive amount of pressure on state employees to do business with particular vendors, in ways that are very difficult to control. If we go too far in making it difficult-to-impossible to prosecute governors, mayors, and legislators from pressuring their subordinates to steer business to particular companies, or to cut regulatory burdens, or to target their competitors and not them for investigation, we're really going to open up to a world of trouble.

Please understand, I love Citizens United; I don't want to suppress free speech, or the ability to spend money to influence the electorate. But I also don't want public officials selling themselves and their administrations to the highest bidder, if only they can couch their actions as "arranging meetings" and "advising."

Sammy Finkelman said...

"If the court below determines that there is sufficient evidence for a jury to convict Governor McDonnell of committing or agreeing to commit an “official act,”

That means they have to allege the elements of a crime, and arranging for meetings, in possble exchange fpr gifts, without telling any lower officials what to do, isn't it.

HoodlumDoodlum said...

Everyone involved with the Clinton Foundation let's out a large sigh of relief...

narciso said...

the mcdonnell case, had a very low bar, it's dubious that any actual policy favored star scientific, with the clinton foundation, the tie is air tight,

MayBee said...

Sure, it was a lousy prosecution. But it kept him from running for President.

Kind of like prosecuting Petraeus kept him from running.
And the "Dear John" prosecution aimed at Scott Walker almost could have worked.

Someday someone will notice an odd trend.

narciso said...

nah, that's just crazy talk maybe, also texas for public justice attacks on delay, perry and paxton, and the nutroots abusing the ethical complaint process in alaska, against the huntress, and the charges against d'nesh,

Sammy Finkelman said...

Mcdonnell wasn't going anywhere, anyway.

For an example of somebody destroyed by Democrats, but not by prosecution, see Virginia Senator George Allen.

https://en.wikipedia.org/wiki/George_Allen_(U.S._politician) (this doesn't really give you the flavor of that, including how George Allen didn't realize how insensitive the word was - the Democrats proceded to play it up - they had taped him.

Sammy Finkelman said...

I think prosecutions are pretty hard anyway. New York State Assembly Speaker Sheldon Silver and State senate Majority Leader Dean Skelos weren't gotten on any quid pro quo for legislation or stopping legislation.

It was misdirecting a little bit of state money on the part of Sheldon Silver - to subsidize an doctor who could give a law firm that had made him a partner asbestos cases - plus, both in his case and in Skelos case, forcing some businesses to hire or continue to hire a law firm or a person.

Gaining personally or having a close family member gain seems to be necessary (campaign contributions won't do) and either extorting that gain (a job or a business relationship) - the extortion can be be vague threats or even nothing - just that the firm in question didn't want to do that on its own - or making an decision to spend government money that doesn't can't seem to make sense.

The law may cover more, but that's where the strongest evidence is, or where the ability to get testimony is.

cubanbob said...

Yet again another example of why prosecutors need to have their immunity severely curtailed.

mikee said...

Well, Hillary has hundreds of millions of dollars of quids piled up in her account, and each and every quo is expected in return. Can't leave her uncertain about how she can pay back her pay masters.