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SCOTUS: Governor setting meetings, calls, events in exchange for gifts not illegal

McDonnell v. United States, USSC No. 15-474, 2016 WL 3461561 (June 27, 2016), reversing United States v. McDonnell, 792 F.3d 478 (4th Cir. 2015); Scotusblog page (includes links to briefs and commentary)

While he was governor of Virginia, Bob McDonnell, along with his wife, accepted gifts and favors worth about $175,000 from a businessman who was trying to get the state medical schools to run studies on a nutritional supplement his company had developed. As discussed in our post on the cert grant, a jury convicted McDonnell of various honest services fraud and extortion counts in relation to various actions he undertook related to the supplement, including arranging and attending meetings with other government officials about the supplement and hosting a private lunch with the businessman at which checks were given to university researchers.

A unanimous (8-0) Supreme Court now reverses the convictions, on the ground that the jury instructions swept too broadly in their definition of “official act,” such that almost any action by a public official (when done in exchange for something of value) would qualify. The analysis consists of statutory construction–our old friend noscitur a sociis does much of the work–and the Court’s stated concern that the government’s reading of the law would render it unconstitutionally vague and chill the legitimate activities of public officials. (Slip op. at 15, 22-23). The Court strains to make clear that it does not approve of the McDonnells’ activities (which really were pretty brazen, slip op. at 3-8), but is ruling with this broader context in mind:

There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term “official act” leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.

(Slip op. at 28). The case will now return to the Fourth Circuit, which will determine whether the evidence presented at trial was sufficient to satisfy the newly-clarified elements of the offenses; if so, McDonnell may be retried; if not, the case will be dismissed. (Slip op. at 28).

As we previously noted, this case could have some impact on state criminal practice, since Wisconsin’s bribery statute contains some language similar (but by no means identical) to that at issue here. Any prudent prosecutor considering charges against a public official will certainly note the Court’s determination to protect what it views as a politician’s valid constituent services–even when said constituent happens to have showered said politician with lavish personal gifts.

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