by Bob Lackner
During his four-year term in office, the former Governor of Virginia tried to assist a constituent who had bestowed extensive loans and gifts on the official, his wife, and their family. At what point does such assistance qualify as an “official act” necessary to sustain a conviction for violating federal law prohibiting bribery? This was the issue before the United States Supreme Court in the case of McDonnell v. United States, 579 U.S. ___ (2016).
In November 2009, Robert McDonnell was elected Governor of Virginia. While in office, McDonnell and his wife Maureen and other family members received $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams. Williams was chief executive officer of Star Scientific, a Virginia-based company that had developed and marketed a nutritional supplement named Anatabloc that was made from a compound found in tobacco. Star Scientific hoped to obtain federal approval of Anatabloc as an anti-inflammatory drug. An important step in that approval was initiating independent research studies on Anatabloc’s health benefits. Williams sought McDonnell’s assistance in obtaining these studies from Virginia’s public universities.
The gifts and loans that Williams gave to the Governor and his family included $20,000 worth of designer clothing for Mrs. McDonnell, personal loans totaling $70,000, a $15,000 gift towards their daughter’s wedding, a Rolex watch for the Governor, and a $10,000 wedding gift to one of their daughters.
In 2014, the federal government indicted Robert and Maureen McDonnell (by then out-of-office) on various bribery charges. To convict the McDonnells of bribery, the government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts from Williams. After a trial, the jury convicted McDonnell of accepting bribes from Williams. Mrs. McDonnell was also convicted of most of the similar criminal charges against her.
Governor McDonnell appealed his conviction to the United States Fourth Circuit Court of Appeals. He challenged the definition of “official action” in the jury instructions used at his trial on the ground that it deemed “virtually all of a public servant’s activities ‘official’, no matter how minor or innocuous.” The Fourth Circuit affirmed the conviction. McDonnell appealed to the United States Supreme Court.
The Supreme Court’s Analysis
The issue before the Supreme Court was the proper interpretation of the term “official act” as used in the federal bribery statute, 18 USC §201. That statute makes it a federal crime for “a public official…directly or indirectly, corruptly” to demand, accept, or agree to accept “anything of value” in return for being “influenced in the performance of any official act.” An “official act” is defined as
The government argued that the term “official act” encompasses nearly any activity by a public official. The term specifically includes, therefore, arranging meetings, hosting events, and merely contacting other government officials concerning any subject, including a broad public policy issue such as Virginia economic development. The Governor had undertaken these acts on behalf of Williams.
By contrast, the thrust of Governor McDonnell’s appeal was that the statutory context compels a more circumscribed reading of the statutory text, limiting “official acts” to those acts that “direct a particular resolution of a specific government decision” or that pressure another official to do so. Taking into account the statutory text, its precedents, and constitutional concerns raised by Governor McDonnell, the Supreme Court unanimously rejected the government’s reading of the federal bribery statute and, in an opinion authored by Chief Justice Roberts, adopted a more restricted interpretation of “official act.”
The Court held that an “official act” is a decision or action on a “question, matter, cause, suit, proceeding, or controversy.” The “question or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It 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 controversy” or agree to do so. That decision or action may include using his or her official position to exert pressure on another official to perform an “official act,” or to advise another official knowing or intending that the advice will form the basis for an “official act” by another official. Setting up a meeting, calling another public official, or organizing an event (or agreeing to do so)—without more—does not fit the definition of “official act.”
In addition, the Supreme Court expressed concern that the government’s expansive interpretation of “official act” would raise significant constitutional concerns. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on those constituents’ concerns. The Court found that the Government’s position would likely pose a chilling effect on the interactions of public officials with the people they serve and thus damage the ability of public officials to effectively perform their duties. The Court expressed a related concern that, under the government’s interpretation, the term “official act” is not defined with “sufficient definitiveness that ordinary people can understand what conduct is prohibited” or in a manner that does not encourage arbitrary and discriminatory enforcement.
The Supreme Court agreed with McDonnell’s contention that his convictions must be vacated because the jury was improperly instructed on the meaning of “official act” as used in the governing statute. Because the jury was not correctly instructed on the meaning of this term, it may have convicted McDonnell for conduct that is actually lawful. These errors were not harmless. The Court noted that a more limited interpretation of the term “official act” would leave ample room for prosecuting corruption while comporting with the statutory text and its precedents in this area.
Governor McDonnell’s conviction spurred some reforms to Virginia’s ethics laws in the next legislative session. Among the changes was the creation of a $100 annual limit on gifts lawmakers can accept from lobbyists, their clients, or others seeking to do business with the state.
As with the Governor of Virginia, a Colorado public official could engage in conduct that results in a bribery conviction under federal law, and the McDonnell case would apply. Also, in Colorado the statutory standards of conduct forbid a member of the General Assembly from accepting a gift primarily given to reward the legislator for official action he or she has taken. See section 24-18-104 (1)(b)(II), C.R.S. The Colorado courts could apply the McDonnell case to augment the meaning of the key term “official action” as used in Colorado’s statutory standards of conduct in weighing the appropriateness by a legislator of accepting gifts.