The Supreme Court today granted review of former Virginia Governor Bob McDonnell’s appeal from his federal conviction on a variety of corruption charges. The case documents can be found at SCOTUSBlog here. This is a fascinating issue, and, I would suggest, a potentially important one for the Court. Here’s why.
Recall that McDonnell (along with his wife) was accused of accepting money and gifts from Johnnie Williams, CEO of Star Scientific, in exchange for McDonnell’s efforts to get the Commonwealth to push a new dietary supplement made by Star. The company did not have the resources to pursue testing of the supplement, and so needed the help of the Commonwealth. The Government alleges that McDonnell engaged in “official acts” in exchange for the lavish gifts bestowed upon him and his wife. He was convicted (as was his wife), most notably under the honest services fraud statute, 18 U.S.C. 1349, and the official-right extortion provision of the Hobbs Act. 18 U.S.C. 1951.
McDonnell claims on appeal that the lower courts defined “official act” too broadly and that his conduct did not constitute an “official act.” (it is worth noting that neither the honest services statute nor the Hobbs Act use the term “official act”). But – and this is the truly fascinating question – if the broader definition employed by the lower courts is really the appropriate definition under these relevant statutes, then, McDonnell says, those statutes are unconstitutional. Why? Because McDonnell’s actions were lawful under Virginia law. As far as he knew, everything he did was legal. Consequently, McDonnell argues, the federal government cannot use federal anti-corruption law to criminalize the conduct of a state official that is lawful in his state, at least not in the absence of a clear statement by Congress that it intends to displace state law on the matter.
McDonnell also argues that the broader interpretation of these statutes renders them unconstitutionally vague, in violation of due process.
Since McDonnell’s indictment, I have argued that this was a potentially far-reaching theory of the case on the part of the Feds. This theory appeared to be so broad that it could encompass a wide range of actions that are, today, considered a normal part of the political process. What about, for example, a presidential campaign bundler who eventually gets a nomination as an ambassador from the president for whom he bundled – has that president committed a crime? What about an official whose family’s private foundation receives monetary donations from foreign governments with whom the official is conducting business? Perhaps neither of those examples show criminality of the sort charged against McDonnell. And there is a quid pro quo component to this prosecution that would have to be proven in other prosecutions under these same laws. But the theory of the McDonnell prosecution at least raises serious questions about the scope of the Government’s authority to reach politicians and other government officials who have even relatively minor contacts with donors – or contacts that might be considered the normal incidents of American politics, but not crimes.
I will have to give the filings a closer look. But for now, I think this case could either be decided on fairly narrow statutory interpretation grounds, or potentially reach these bigger federalism or due process questions related to federal anti-corruption prosecutions. Because of the sheer potential reach of the honest services statute and the Hobbs Act, and the power that those statutes give to federal prosecutors, any ruling in McDonnell’s favor could have some meaningful impact on federal criminal practice in public integrity cases.
I also note that this appears to be a big Term for the Hobbs Act (Ocasio, Taylor, and now McDonnell are all Hobbs Act cases).