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US Supreme Court Overturns Former VA Gov. Bob McDonnell’s Conviction– and the Decision Has Implications for NY’s Silver and Skelos Convictions

June 28, 2016

On Monday, June 27, 2016, the US Supreme Court vacated the lower-court conviction of former Virginia governor Bob McDonnell over the issue of how the term “official act” was (in the Court’s view) too broadly interpreted.

As CNN recaps, McDonnell was convicted in 2014 for “receiving gifts, money, and loans from Jonnie R. Williams, the CEO of a Virginia-based company, in exchange for official acts seen as favorable to Williams and his business.”

Williams, who was CEO of Star Scientific, Inc., later resigned as a result of the controversy raised in connection with McDonnell and another elected official.

Below are excerpts from the Supreme Court’s opinion in McDonnell vs. United States:

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. 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. The parties did not agree, however, on what counts as an “official act.” The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five “official acts.” Those acts included “arranging meetings” for Williams with other Virginia officials to discuss Star Scientific’s product, “hosting” events for Star Scientific at the Governor’s Mansion, and “contacting other government officials” concerning studies of anatabine. … The Government also argued more broadly that these activities constituted “official action” because they related to Virginia business development, a priority of Governor McDonnell’s administration. Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official—without more—does not count as an “official act.” At trial, the District Court instructed the jury according to the Government’s broad understanding of what constitutes an “official act,” and the jury convicted both Governor and Mrs. McDonnell on the bribery charges. The Fourth Circuit affirmed Governor McDonnell’s conviction, and we granted review to clarify the meaning of “official act.”

In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding 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, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.”

In addition to being inconsistent with both text and precedent, the Government’s expansive interpretation of “official act” would raise significant constitutional concerns. Section 201 prohibits quid pro quo corruption—the exchange of a thing of value for an “official act.” 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. …

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. …

A related concern is that, under the Government’s interpretation, the term “official act” is not defined “with sufficient definiteness that ordinary people can understand what conduct is prohibited,” or “in a manner that does not encourage arbitrary and discriminatory enforcement.” …

Governor McDonnell argues that his convictions must be vacated because the jury was improperly instructed on the meaning of “official act” under §201(a)(3) of the federal bribery statute. According to Governor McDonnell, the District Court “refused to convey any meaningful limits on ‘official act,’ giving an instruction that allowed the jury to convict [him] for lawful conduct.” Brief for Petitioner 51. We agree.

The jury instructions included the statutory definition of “official action,” and further defined the term to include “actions that have been clearly established by settled practice as part of a public official’s position, even if the action was not taken pursuant to responsibilities explicitly assigned by law.” … The instructions also stated that “official actions may include acts that a public official customarily performs,” including acts “in furtherance of longer-term goals” or “in a series of steps to exercise influence or achieve an end.” … In light of our interpretation of the term “official acts,” those instructions lacked important qualifications, rendering them significantly overinclusive. …

The problem with the District Court’s instructions is that they provided no assurance that the jury reached its verdict after finding those questions or matters. The testimony at trial described how Governor McDonnell set up meetings, contacted other officials, and hosted events. It is possible the jury thought that a typical meeting, call, or event was itself a “question, matter, cause, suit, proceeding or controversy.” If so, the jury could have convicted Governor McDonnell without finding that he committed or agreed to commit an “official act,” as properly defined. To prevent this problem, the District Court should have instructed the jury that it must identify a “question, matter, cause, suit, proceeding or controversy” involving the formal exercise of governmental power. …

Second, the instructions did not inform the jury that the “question, matter, cause, suit, proceeding or controversy” must be more specific and focused than a broad policy objective. …

Third, the District Court did not instruct the jury that to convict Governor McDonnell, it had to find that he made a decision or took an action—or agreed to do so—on the identified “question, matter, cause, suit, proceeding or controversy,” as we have construed that requirement. At trial, several of Governor McDonnell’s subordinates testified that he asked them to attend a meeting, not that he expected them to do anything other than that. …

The jury may have disbelieved that testimony or found other evidence that Governor McDonnell agreed to exert pressure on those officials to initiate the research studies or add Anatabloc to the state health plan, but it is also possible that the jury convicted Governor McDonnell without finding that he agreed to make a decision or take an action on a properly defined “question, matter, cause, suit, proceeding or controversy.” To forestall that possibility, the District Court should have instructed the jury that merely arranging a meeting or hosting an event to discuss a matter does not count as a decision or action on that matter. Because the jury was not correctly instructed on the meaning of “official act,” it may have convicted Governor McDonnell for conduct that is not unlawful. For that reason, we cannot conclude that the errors in the jury instructions were “harmless beyond a reasonable doubt.” … We accordingly vacate Governor McDonnell’s convictions.

Fred Wertheimer of the SCOTUS blog believes that the Court’s decision sets a bad precedent and weakens governmental prosecution of corruption involving elected officials. Indeed, the Court’s overturning McDonnell’s conviction could result in the same for recently-convicted New York officials, former Assembly speaker, Sheldon Silver, and former NY senate leader, Dean Skelos.

The June 27, 2016, Times Union offers the following background on Skilos and Silver:

Skelos, the former state Senate majority leader, and his son Adam were arrested in May 2015, on charges that they conspired in a years-long effort to trade legislative favors for personal and political benefits, described by Bharara as an effort to “monetize” the lawmaker’s power.

In the Silver case, the former Democratic Assembly speaker was found to have engaged in a two-track corruption scheme that netted him an estimated $4 million in bribes and kickbacks disguised as legal fees. The beneficiaries of those schemes were a doctor who received state grants in exchange for funneling mesothelioma patients to a law firm where Silver was of counsel, and real estate developers who provided work to another firm that employed the lawmaker.

Here are more details from McDonnell vs. United States. It seems that McDonnell’s wife was the catalyst in McDonnell’s corruption woes; these details seem to affirm that she was prodding her husband on Williams’ behalf:

This case concerns Governor McDonnell’s interactions with one of his constituents, Virginia businessman Jonnie Williams. Williams was the CEO of Star Scientific, a Virginia-based company that developed and marketed Anatabloc, a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped to obtain Food and Drug Administration approval of Anatabloc as an anti-inflammatory drug. An important step in securing that approval was initiating independent research studies on the health benefits of anatabine. Star Scientific hoped Virginia’s public universities would undertake such studies, pursuant to a grant from Virginia’s Tobacco Commission.

Governor McDonnell first met Williams in 2009, when Williams offered McDonnell transportation on his private airplane to assist with McDonnell’s election campaign. Shortly after the election, Williams had dinner with Governor and Mrs. McDonnell at a restaurant in New York. The conversation turned to Mrs. McDonnell’s search for a dress for the inauguration, which led Williams to offer to purchase a gown for her. Governor McDonnell’s counsel later instructed Williams not to buy the dress, and Mrs. McDonnell told Williams that she would take a rain check. …

In October 2010, Governor McDonnell and Williams met again on Williams’s plane. During the flight, Williams told Governor McDonnell that he “needed his help” moving forward on the research studies at Virginia’s public universities, and he asked to be introduced to the person that he “needed to talk to.” … Governor McDonnell agreed to introduce Williams to Dr. William Hazel, Virginia’s Secretary of Health and Human Resources. Williams met with Dr. Hazel the following month, but the meeting was unfruitful; Dr. Hazel was skeptical of the science behind Anatabloc and did not assist Williams in obtaining the studies. …

Six months later, Governor McDonnell’s wife, Maureen McDonnell, offered to seat Williams next to the Governor at a political rally. Shortly before the event, Williams took Mrs. McDonnell on a shopping trip and bought her $20,000 worth of designer clothing. The McDonnells later had Williams over for dinner at the Governor’s Mansion, where they discussed research studies on Anatabloc. …

Two days after that dinner, Williams had an article about Star Scientific’s research e-mailed to Mrs. McDonnell, which she forwarded to her husband. Less than an hour later, Governor McDonnell texted his sister to discuss the financial situation of certain rental properties they owned in Virginia Beach. Governor McDonnell also e-mailed his daughter to ask about expenses for her upcoming wedding. The next day, Williams returned to the Governor’s Mansion for a meeting with Mrs. McDonnell. At the meeting, Mrs. McDonnell described the family’s financial problems, including their struggling rental properties in Virginia Beach and their daughter’s wedding expenses. Mrs. McDonnell, who had experience selling nutritional supplements, told Williams that she had a background in the area and could help him with Anatabloc. According to Williams, she explained that the “Governor says it’s okay for me to help you and—but I need you to help me. I need you to help me with this financial situation.” … Mrs. McDonnell then asked Williams for a $50,000 loan, in addition to a $15,000 gift to help pay for her daughter’s wedding, and Williams agreed.

Williams testified that he called Governor McDonnell after the meeting and said, “I understand the financial problems and I’m willing to help. I just wanted to make sure that you knew about this.” … According to Williams, Governor McDonnell thanked him for his help. … Governor McDonnell testified, in contrast, that he did not know about the loan at the time, and that when he learned of it he was upset that Mrs. McDonnell had requested the loan from Williams. …

Three days after the meeting between Williams and Mrs. McDonnell, Governor McDonnell directed his assistant to forward the article on Star Scientific to Dr. Hazel. In June 2011, Williams sent Mrs. McDonnell’s chief of staff a letter containing a proposed research protocol for the Anatabloc studies. The letter was addressed to Governor McDonnell, and it suggested that the Governor “use the attached protocol to initiate the ‘Virginia Study’ of Anatabloc at the Medical College of Virginia and the University of Virginia School of Medicine.” … Williams testified at trial that he did not “recall any response” to the letter. …

In July 2011, the McDonnell family visited Williams’s vacation home for the weekend, and Governor McDonnell borrowed Williams’s Ferrari while there. Shortly thereafter, Governor McDonnell asked Dr. Hazel to send an aide to a meeting with Williams and Mrs. McDonnell to discuss research studies on Anatabloc. The aide later testified that she did not feel pressured by Governor or Mrs. McDonnell to do “anything other than have the meeting,” and that Williams did not ask anything of her at the meeting. … After the meeting, the aide sent Williams a “polite blow-off ” e-mail. …

At a subsequent meeting at the Governor’s Mansion, Mrs. McDonnell admired Williams’s Rolex and mentioned that she wanted to get one for Governor McDonnell. Williams asked if Mrs. McDonnell wanted him to purchase a Rolex for the Governor, and Mrs. McDonnell responded, “Yes, that would be nice.” … Williams did so, and Mrs. McDonnell later gave the Rolex to Governor McDonnell as a Christmas present. …

In August 2011, the McDonnells hosted a lunch event for Star Scientific at the Governor’s Mansion. According to Williams, the purpose of the event was to launch Anatabloc. … According to Governor McDonnell’s gubernatorial counsel, however, it was just lunch. …

The guest list for the event included researchers at the University of Virginia and Virginia Commonwealth University. During the event, Star Scientific distributed free samples of Anatabloc, in addition to eight $25,000 checks that researchers could use in preparing grant proposals for studying Anatabloc. Governor McDonnell asked researchers at the event whether they thought “there was some scientific validity” to Anatabloc and “whether or not there was any reason to explore this further.” … He also asked whether this could “be something good for the Commonwealth, particularly as it relates to economy or job creation.” … When Williams asked Governor McDonnell whether he would support funding for the research studies, Governor McDonnell “very politely” replied, “I have limited decision-making power in this area.” …

In January 2012, Mrs. McDonnell asked Williams for an additional loan for the Virginia Beach rental properties, and Williams agreed. On February 3, Governor McDonnell followed up on that conversation by calling Williams to discuss a $50,000 loan. Several days later, Williams complained to Mrs. McDonnell that the Virginia universities were not returning Star Scientific’s calls. She passed Williams’s complaint on to the Governor. While Mrs. McDonnell was driving with Governor McDonnell, she also e-mailed Governor McDonnell’s counsel, stating that the Governor “wants to know why nothing has developed” with the research studies after Williams had provided the eight $25,000 checks for preparing grant proposals, and that the Governor “wants to get this going” at the universities. … According to Governor McDonnell, however, Mrs. McDonnell acted without his knowledge or permission, and he never made the statements she attributed to him. …

On February 16, Governor McDonnell e-mailed Williams to check on the status of documents related to the $50,000 loan. A few minutes later, Governor McDonnell e-mailed his counsel stating, “Please see me about Anatabloc issues at VCU and UVA. Thanks.” … Governor McDonnell’s counsel replied, “Will do. We need to be careful with this issue.” … The next day, Governor McDonnell’s counsel called Star Scientific’s lobbyist in order to “change the expectations” of Star Scientific regarding the involvement of the Governor’s Office in the studies.

In March 2012, Governor McDonnell met with Lisa Hicks-Thomas, the Virginia Secretary of Administration, and Sara Wilson, the Director of the Virginia Department of Human Resource Management. The purpose of the meeting was to discuss Virginia’s health plan for state employees. At that time, Governor McDonnell was taking Anatabloc several times a day. He took a pill during the meeting, and told Hicks-Thomas and Wilson that the pills “were working well for him” and “would be good for” state employees. … Hicks-Thomas recalled Governor McDonnell asking them to meet with a representative from Star Scientific; Wilson had no such recollection. … After the discussion with Governor McDonnell, Hicks-Thomas and Wilson looked up Anatabloc on the Internet, but they did not set up a meeting with Star Scientific or conduct any other follow-up. … It is undisputed that Virginia’s health plan for state employees does not cover nutritional supplements such as Anatabloc.

In May 2012, Governor McDonnell requested an additional $20,000 loan, which Williams provided. Throughout this period, Williams also paid for several rounds of golf for Governor McDonnell and his children, took the McDonnells on a weekend trip, and gave $10,000 as a wedding gift to one of the McDonnells’ daughters. In total, Williams gave the McDonnells over $175,000 in gifts and loans. …

In January 2014, Governor McDonnell was indicted for accepting payments, loans, gifts, and other things of value from Williams and Star Scientific in exchange for “performing official actions on an as-needed basis, as opportunities arose, to legitimize, promote, and obtain research studies for Star Scientific’s products.” Supp. App. 46. The charges against him comprised one count of conspiracy to commit honest services fraud, three counts of honest services fraud, one count of conspiracy to commit Hobbs Act extortion, six counts of Hobbs Act extortion, and two counts of making a false statement. … Mrs. McDonnell was indicted on similar charges, plus obstructing official proceedings, based on her alleged involvement in the scheme. See §1512(c)(2) (obstruction).

McDonnell could still be retried in federal court.

As for McDonnell’s wife, Maureen: The Washington Post reports that her appeal has not yet been heard.

Finally, concerning the impact of the McDonnell vs. United States decision upon the futures of Silver and Skilos, the Times Union offers the following:

The defense teams for both Silver and Skelos have been awaiting the McDonnell decision with bated breath. An attorney for Skelos, G. Robert Gage, declined to comment. Silver’s attorneys Steven Molo and Joel Cohen said in a statement that the decision “makes clear that the federal government has gone too far in prosecuting state officials for conduct that is part of the everyday functioning of those in elected office.”

Both Silver and Skelos will now file revised motions for bail pending appeal.

James Margolin, a spokesman for U.S. Attorney Preet Bharara, said that while his office is reviewing the decision, “the official actions that led to the convictions of Sheldon Silver and Dean Skelos fall squarely within the definition set forth by the Supreme Court today.”

We will see how McDonnell vs. United States plays out in the Silver and Skilos appeals (and likely numerous other corruption cases).

ethics definition

____________________________________________________________

Coming July 08, 2016, from TC Press (revised release date):

School Choice: The End of Public Education? 

school choice cover  (Click image to enlarge)

Stay tuned.

 

***

Schneider is a southern Louisiana native, career teacher, trained researcher, and author of the ed reform whistle blower, A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education.

She also has a second book, Common Core Dilemma: Who Owns Our Schools?.

both books

Don’t care to buy from Amazon? Purchase my books from Powell’s City of Books instead.

From → Ethics, litigation

2 Comments
  1. Laura H. Chapman permalink

    So charter school corruption is not likely to be stopped by state officials, and federal officials just keep shoving money the industry.

  2. I suspect that SCUSUS is chiefly concerned with immunizing itself.

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