U.S. Supreme Court Skeptical of Ex-Gov. McDonnell's Corruption Conviction

by | April 28, 2016

By Travis Fain

Skeptical Supreme Court justices probed the definition of "official act" here Wednesday, searching for the line between politics and corruption that is so crucial to the bribery case against former Gov. Bob McDonnell.

The justices peppered McDonnell's attorney, and a deputy U.S. solicitor general, with hypothetical trout fishing trips, constituent lunches, agreed-to meetings and polite-but-ignored letters, looking for a definition of quid-pro-quo that remained elusive after an hour of oral arguments.

McDonnell and his legal team left pleased by the questioning, which seemed to offer hope that the court would spare the former governor a 2-year sentence handed down in early 2015, after a jury found McDonnell and his wife guilty on multiple corruption charges. Henry Asbill, one of McDonnell's lead attorneys, said he heard a lot of things Wednesday that "gave me heart."

The court's decision is expected in June.

The governor and his wife, Maureen, are free while their appeals run their course, and they attended Wednesday's hour-long hearing. They left in the same car, a change from the 2014 trial, when they arrived and left separately and made their strained marriage key to the former governor's defense.

Going into these arguments, many court observers said McDonnell had a tough hill to climb, particularly given the recent death of Justice Antonin Scalia, who was on record questioning the vagueness of the law at the heart of these proceedings.

Photo coverage from the trial, sentencing, and appeal of Gov. Bob McDonnell in Richmond, Va.

But on Wednesday justices seemed concerned about ceding too much authority to prosecutors who might pursue politicians in the future. Justice Stephen Breyer probed repeatedly for words to draw a reasonable -- and precedent setting -- line between innocent-enough free lunches and cash swaps for government access.

"Those are the words that I cannot find," Breyer said.

Breyer said the words need not be perfect, and that they will certainly leave some dishonest behavior unpunished. Better that, he said, than unleash overzealous prosecution.

The government's logic in the case against McDonnell, whose family took more than $177,000 in loans and gifts from a wealthy businessman who got access to the governor's subordinates, but not state funding, "feels dangerous," Breyer said. Since the "quid" in a bribery case need not be a large amount, Breyer and other justices struggled with the government's definition of the "quo" in this case, and how it might affect future cases.

"For better or worse, it puts at risk behavior that is common," Breyer said. "A recipe for giving the Department of Justice and prosecutors enormous power over elected officials ... and I am looking for the line that will control the shift in power."

Justice Anthony Kennedy joined Breyer in his struggle, suggesting that the government's logic would mean the president of the United States commits a felony when he gives special access to big-dollar donors.

Justice Elena Kagan dubbed herself "troubled" by the way the government charged McDonnell. Chief Justice John Roberts called attention to the "extraordinary" support McDonnell's arguments have found from former White House attorneys for multiple presidents, both Republican and Democratic.

Former Virginia Gov. Bob McDonnell and former Newport News state Del. Phil Hamilton have one thing in common beyond felony convictions: They both sincerely believe that they did nothing wrong.

It's easy to see why. In Virginia, the line between right and wrong -- or, more correctly, between legal...

Former Virginia Gov. Bob McDonnell and former Newport News state Del. Phil Hamilton have one thing in common beyond felony convictions: They both sincerely believe that they did nothing wrong.

It's easy to see why. In Virginia, the line between right and wrong -- or, more correctly, between legal...

The former White House counselors argued, in one of many amicus briefs in this case, that a conviction would "cripple" modern politics.

"I think it's extraordinary that those people agree on anything," Robert said.

"It may be extraordinary," Deputy Solicitor General Michael Dreeben replied, "but that doesn't make it correct."

Dreeben asked the nation's high court not to endorse a "pay to play theory of government." He argued that McDonnell's willingness to schedule meetings for Jonnie R. Williams Sr., who gave the governor and his wife five-figure loans paperwork-free, and to let Williams invite doctors that he hoped to pitch on a product to the governor's mansion for a party, amounted to the official acts need to prove a bribery scheme.

Williams cut a deal with prosecutors and testified that he lavished McDonnell and his family with gifts because he hoped to get state funding, and university support, for drug trials for Anatabloc, a supplement since removed from shelves.

Dreeben's argument seemed to have some support on the court. Justice Sonia Sotomayor noted that the university officials who could have helped Williams get his trials felt some pressure from governor. Justice Ruth Bader Ginsberg asked McDonnell's attorney, Noel J. Francisco, whether government officials should be allowed to charge $1,000 just to take a meeting.

"That's your view," she said. "That would be OK."

Francisco responded that this would be illegal under other laws not at issue in this case. He said that, in sending Williams to Virginia Secretary of Health Bill Hazel, McDonnell was only making "the same type of referral that he made day in and day out."

McDonnell did not, Francisco said, "put his thumb on the scales" to influence what Hazel, or other state officials, decided after talking to Williams.

Roberts said whether meeting referrals alone amount to cajoling, though, "depends on who's making the referral," noting that a president asking a federal official to take a meeting carries different weight than a senator, or a congressman.

McDonnell has apologized for his role in this scandal, which led to three rounds of changes to Virginia's gift laws. But he has also said he did nothing illegal, and he re-iterated that Wednesday, in a brief statement before a bank of television cameras outside the Supreme Court.

McDonnell also said he was "incredibly grateful" that the court accepted his case and gave it close attention.

Here is a collection of stories, photographs and videos about the indictment, trial and sentencing of former Virginia Gov. Bob McDonnell and his wife, Maureen.

The McDonnells accepted more than $165,000 in cash, gifts and loans from Jonnie R. Williams Sr., a wealthy businessman and supporter. Williams...

Here is a collection of stories, photographs and videos about the indictment, trial and sentencing of former Virginia Gov. Bob McDonnell and his wife, Maureen.

The McDonnells accepted more than $165,000 in cash, gifts and loans from Jonnie R. Williams Sr., a wealthy businessman and supporter. Williams...

(c)2016 the Daily Press (Newport News, Va.)