Governor McDonnell Update

Yesterday, the Supreme Court heard oral argument in McDonnell v. United States, the appeal of the former Virginia governor’s convictions on federal corruption charges.  The case turns on the definition of “official act,” the linchpin for determining whether a government figure has engaged in illegal conduct in exchange for favors. 

At oral argument, McDonnell’s attorney contended that facilitating mere “access to decision-makers” cannot properly subject a public official to corruption charges.  Instead, he asserted, an official act requires a person either to “make a government decision or urge someone else to do so.” The attorney representing the federal government responded that this proposed definition is “too narrow” and “would send a terrible message to citizens.”

Assuming that questions at oral argument indicate which way the Court will go is risky business. That said, there appeared to be significant concern from the bench about the power an arguably ambiguous provision would confer on the Department of Justice.  For example, Justice Breyer expressed deep concerns about the federal Justice Department acting as the “ultimate arbiter” of proper political conduct for state and local officials across the nation.  Likewise, multiple Justices worried about subjecting officials to criminal penalties for conduct often viewed as essentially "political," like making introductions to others.

The Supreme Court makes decisions based on principles of law rather than on the specific details of any given case.  Here, several Justices appear troubled by the potential for overreach by the Justice Department—a recurring theme in recent Supreme Court cases, as I have previously discussed. And that is particularly acute in the arena of federal prosecution of state elected officials.