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What Does Bob McDonnell’s Case Mean for Members and Staffers? | Question of Ethics

Q. I am not an attorney, but I have several friends who are, and they seem to think that the latest development in Bob McDonnell’s legal case is significant. I know that McDonnell lost the appeal of his conviction on corruption charges. But, can you explain the legal significance of the case to a non-lawyer like me? Should it mean anything to those of us on the Hill? A.  Yes, it should. Though Bob McDonnell was a state government official — governor of Virginia — he was tried in federal courts by federal prosecutors for violations of federal laws, the same laws that apply to government officials all around the country, including members and staffers on the Hill. Therefore, the recent decision by the 4th U.S. Circuit Court of Appeals in Richmond, Va., to reject McDonnell’s appeal could have consequences well beyond Virginia.  

The issue in the case that many attorneys have been watching closely is what kinds of actions are covered by federal prohibitions on bribery. Federal law provides that public officials may not corruptly demand, seek or receive anything of value “in return for ... being influenced in the performance of any official act.”  

In the McDonnell case, there was little dispute that he and his wife received things of value from a Virginia businessman, including loans, trips, a Rolex watch and more. At issue was whether the gifts were part of an agreement between McDonnell and the businessman to obtain influence over anything that would qualify as an official act.  

The government contended McDonnell took many acts to help the businessman’s efforts to launch a new health product. McDonnell argued on appeal, however, that nothing he did to help the businessman could be considered an official act under the law. The government’s refusal to distinguish “between official acts, and every other act an official takes,” McDonnell’s appeal brief said, “led it to indict and convict Governor McDonnell for conduct that has never been criminal.” The government’s “boundless definition” of official act, the brief said, “would make virtually every elected official ... a criminal.”  

Other former officials voiced similar concerns, including a group of 44 former state attorney generals, who filed a brief in support of McDonnell’s appeal. The court that convicted McDonnell “handed federal prosecutors virtually unfettered discretion to prosecute state officials for political courtesies and other innocent acts that are a routine part of American political life,” the brief argued. “No lunch with a lobbyist is safe.”  

The appeals court disagreed, stating, “what the Government had to show was that the allegedly corrupt agreement [between McDonnell and the businessman] carried with it an expectation that some type of official action would be taken.” Whether McDonnell actually took such action was beside the point, the court said. Nevertheless, the government exceeded its burden, the court concluded, by showing McDonnell used the power of his office to influence governmental decisions in three matters within his “sphere of influence” — whether researchers at Virginia’s state universities would initiate a study of the product the businessman sought to launch; whether a state commission would allocate grant money to study one of the product’s key ingredients; and whether the health insurance plan for state employees would include the product in its coverage. With respect to studies by university researchers, for example, the court said McDonnell took steps such as “asking a staffer to attend a briefing, questioning a university researcher at a product launch, and directing a policy advisor to ‘see’ him about an issue.” By doing so, McDonnell “exploited the power of his office in furtherance of an ongoing effort to influence the work of state university researches.” This was “more than enough to support the jury’s verdict,” the court said.  

It is possible that the Supreme Court could still reverse the 4th Circuit Court’s decision. And, even if it does not, the legal consequences of the decision remain to be seen. Some attorneys have disputed whether the impact will be as drastic as others have feared.  

Nevertheless, there is one issue on which there seems to be a consensus: unless overturned, this type of victory in a high-profile public corruption case could embolden federal prosecutors to pursue future cases that test the limits of what counts as an official act for purposes of federal restrictions on bribery. Members and staffers take note.  

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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