McDonnell’s Expected Appeal: What Defines An ‘Official Act’?

Former Virginia Gov. Bob McDonnell, arrives at Federal Court in Richmond, Va., Thursday, Aug. 28, 2014. The prosecution in the McDonnell corruption case begins it's rebuttal today. (AP Photo/Steve Helber)
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A jury found Virginia ex-Gov. Bob McDonnell (R) guilty of 11 counts of corruption Thursday, suggesting that they believed wealthy Virginia businessman Jonnie Williams gave $177,000 in gifts and loans to the McDonnell family in exchange for the governor lending the prestige of his office to Williams’ dietary supplements company.

McDonnell’s attorney has already vowed to appeal that verdict, and instructions that jurors received in the case will probably become a sticking point in the appeals process.

District Judge James R. Spencer leaned toward the prosecution’s framing while instructing jurors that an “official act” means “any decision or action on any question, matter, cause, suit or controversy, which may at any time be pending or which may by law be brought before any public official, in such public official’s capacity,” according to the Washington Post. Spencer also instructed the jury that an official action could be something “that a public official customarily performs” and is not necessarily codified in law, as long as the person paying a bribe believed that the act furthered a goal.

Defense attorneys had wanted Spencer to tell the jury that setting up meetings or Executive Mansion events, as the prosecution strove to show McDonnell did for Williams, did not rise to the level of an “official act.”

Barbara “Biz” Van Gelder, a criminal defense attorney with Dickstein Shapiro in Washington, D.C., told TPM that those jury instructions will likely be one of the McDonnells’ bases for an appeal.

“I think in this case the issue is going to be that the jury instructions were too broad, and therefore left too much for the jury to infer,” Van Gelder said. “So instead of being instructed, they were sort of just grazing.”

Van Gelder also pointed out that it’s not clear whether jurors unanimously agreed on exactly what McDonnell did for Williams that constituted an “official act.”

“You might have thought hosting the luncheon was the official act, and I might have thought wearing an Anatabloc shirt was an official act,” she said. “So there should be unanimity on the act. That probably will be something that’s fleshed out [in the appeal].”

Andrew Cowan, a former federal corruption prosecutor, told TPM that he wasn’t at all surprised that Spencer gave the jury those instructions.

“That kind of approach kind of fits with people’s common sense feeling about what passes the smell test and what doesn’t,” he said.

Cowan explained that federal prosecutors have found success in the past with charges of honest services wire fraud — which constituted three of the counts that McDonnell and his wife were found guilty of, plus conspiracy to commit honest services wire fraud — because those statutes are so flexible in their interpretation.

“This was a case where McDonnell had accepted a whole bunch of gifts and goodies from Jonnie Williams that he didn’t disclose; it was sort of kept secret. The loans were maybe disclosed, maybe not — they were on some reports, but they didn’t clearly identify who gave them,” he said. “I think the jury overall could see a pattern of secrecy and not being completely upfront about whether he got gifts and where they were coming from. That’s something that feeds very naturally into this concept of honest services wire fraud.”

Cowan also pointed out that there is precedent in the U.S. Court of Appeals for the 4th Circuit, which would hear McDonnell’s appeal, for a broad definition of an “official act:” the case of former U.S. Rep. William Jefferson (D-LA).

Former Louisiana Congressman William Jefferson, left, stands outside the Albert V. Bryan Courthouse with his wife, Andrea, after being convicted on 11 of 16 counts, Wednesday, Aug. 5, 2009, in Alexandria, Va.

When Jefferson was found guilty of charges of soliciting bribes and other crimes in 2009, his defense appealed the conviction on the grounds that the trial judge dramatically expanded the definition of official acts while instructing the jury. Here’s what the three judges, two of whom were appointed by Republican presidents, wrote in their opinion rejecting his appeal, as quoted by the New Orleans Times-Picayune:

“The (judge’s) instructions did not in any way supplant the statutory definition of what constitutes an official act; it simply explained to the jury that an official act need not be prescribed by statute, but rather may include acts that a congressman customarily performs, even if the act falls outside the formal legislative process.”

Jefferson was ultimately sentenced to 13 years, the longest sentence ever for a member of Congress.

Cowan said Spencer wasn’t exactly breaking new ground in his jury instructions and predicted that McDonnell’s appeal would fall on deaf ears in Virginia.

“The 4th Circuit seems to have spoken on this issue,” he said.

The defense can make a convincing case that there does have to be a “quo” in the “quid pro quo” for something to be considered a bribe. “I think there will be a movement, at least amongst defense attorneys, to argue that the official act has to be something tangible as opposed to just goodwill,” Van Gelder said. If he can convincingly make that argument, then the former governor may have a shot at overturning some of his convictions.

The McDonnells’ sentencing is scheduled for Jan. 6.

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Notable Replies

  1. BoMo rolled the dice and lost. Cry me a river.

  2. McDonnell is just lucky they’re giving him 4 months to get his house in order before sentencing. His sentence will most likely be knocked down eventually from some lengthy time your typical corrupt male politician would normally serve for these offenses, to something more commensurate with how white he is. And to be sure, he is the epitome of whitey whiteness on whitebread.

  3. The brave men and women of our justice system – prosecutors, lawyers, investigators, others in the staff and in supporting roles – deserve our respect for bringing this evil christianical criminal and felon who was willing to trash his solemn wedding vows, throw his wife under the bus, and abuse the power of his high office to enrich himself with bribes.

    The folks in the justice system took on great personal risk and powerful interests in the Republican elite to bring Governor Transvaginal Probing to justice.

  4. This appeal should go about as well as Gov.'s strategy of throwing his wife under the bus.

  5. Avatar for meri meri says:

    See, when Bill Clinton got all weasley it was slimy and unacceptable.

    But this will be totally different.

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