U.S. Supreme Court Limits The Scope Of What Constitutes An “Official Act” And Overturns The Conviction Of Former Virginia Governor Robert McDonnell
On June 27, 2016, the Supreme Court unanimously overturned the 2014 conviction of former Virginia Governor Robert McDonnell. McDonnell v. United States, No. 15-474, 2016 WL 3461561 (June 27, 2016). A jury had convicted McDonnell on charges related to accepting things of value in exchange for performing “official acts,” but the Court defined “official act” narrowly and required that such an act “involve a formal exercise of governmental power.” Since the district court’s jury instruction appeared to define an official act more broadly, the Court held that the jury may have convicted McDonnell without finding that he had committed an official act, and vacated McDonnell’s conviction.
In 2014, the federal government indicted McDonnell and his wife, Maureen, on charges of conspiracy to commit honest services fraud, conspiracy to commit Hobbs Act extortion, Hobbs Act extortion, and making a false statement. (The government indicted Mrs. McDonnell on charges of obstructing official proceedings as well.) The McDonnells had allegedly accepted over $175,000 in loans, gifts and other benefits from Jonnie Williams, the CEO of Star Scientific, a Virginia drug company, in exchange for then-Governor McDonnell’s help in obtaining research studies from Virginia public universities on a Star Scientific product. McDonnell’s “help” allegedly consisted of arranging meetings between Williams and Virginia officials and university scientists and hosting functions at the governor’s mansion. The government alleged that the loans, gifts and other benefits provided by Williams were bribes, and that McDonnell’s efforts on his behalf were “official acts.” McDonnell was convicted on all counts, but appealed his conviction to the Fourth Circuit on the grounds that merely arranging meetings and hosting events were not official acts. The Fourth Circuit affirmed, and McDonnell appealed to the Supreme Court.
The Supreme Court first found that an “official act” has two requirements: (1) a “question, matter, cause, suit, proceeding, or controversy” that may be pending or brought before a public official; and (2) the public official must make a decision or action with respect to that matter. The Court rejected the government’s argument that almost any activity by a public official qualifies as a question or matter under the statute. Instead, the Court found that a question, matter, cause, suit, proceeding, or controversy must involve a formal exercise of government power and must pertain to a specific issue before the public official. Further, a typical meeting, call or event — without more — was not a “decision or action.”
Although the Court’s decision obviously narrows the scope of what constitutes an “official act,” it is not clear to what extent the decision limits the government’s ability to bring corruption-related charges against public officials. Indeed, the Court was careful to state that government had the authority to prosecute a public official who exerts improper influence on a pending governmental question in exchange for something of value. Instead, it is possible to read McDonnell to simply limit an overzealous prosecutor’s ability to turn a handshake, phone call or introduction into an “official act” that implicates federal corruption statutes. Interestingly, the Supreme Court appeared concerned that a different ruling had the potential to chill public officials’ activities with constituents.
McDonnell also is not likely to have an impact in other bribery contexts, such as the FCPA. While the FCPA prohibits the payment of bribes in order to induce a foreign official to use his position to impact a government decision, the FCPA does not proscribe a foreign official’s receipt of bribes. Therefore, while McDonnell has placed some limits on the nature of a public official’s act in the context of bribes received by a U.S. government official, companies should not expect that the U.S. government will be any less aggressive in the foreign bribery context.
While it remains to be seen if the Court has provided government officials with a way out of corruption prosecutions, the McDonnell decision will undoubtedly lead to appeals from officials recently convicted of corruption, including Rod Blagojevich, Sheldon Silver, and Dean Skelos.