By David G. Savage
The Supreme Court on Monday overturned the bribery conviction of former Virginia Gov. Robert McDonnell, saying prosecutors did not prove he took significant official actions in exchange for the $175,000 in gifts and loans he received from a wealthy businessman.
The court's decision, by a unanimous vote, will likely make it harder to bring corruption charges against public officials across the nation who take cash and gifts from people seeking favors.
Chief Justice John G. Roberts Jr. said it was not clear the former governor was convicted of committing an "official act" in exchange for bribes.
"Because the jury was not correctly instructed on the meaning of 'official act,' it may have convicted Gov. McDonnell for conduct that is not unlawful," Roberts said. "For that reason we cannot conclude that errors in the jury instruction were harmless beyond a reasonable doubt. We accordingly vacate Gov. McDonnell's convictions."
Roberts said it is now up to the Court of Appeals to decide what happens next. The court could set the case for a new trial, or dismiss it entirely, although that looks unlikely.
"There is no doubt that this case is distasteful," Roberts said. "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."
The court's opinion is likely to make it much harder to prosecute public officials for taking secret payments. Roberts said they can be convicted of bribery only if they take action that involves "a formal exercise of governmental power." He said that arranging a "typical meeting, call or event" is not sufficient.
"The public official may make a decision or take an action," which may include "using his official position to exert pressure on another official to perform an official act," he said.
"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," he added.
A top Justice Department attorney had warned the justices that a ruling for McDonnell would "send a terrible message to citizens." It would endorse a "pay-to-play theory of government" where people give cash to get access to top officials, said Deputy Solicitor General Michael Dreeben when the court heard McDonnell's appeal.
Four years ago, then-Gov. McDonnell was a favorite of Christian conservatives and was mentioned as a possible vice presidential running mate for Mitt Romney in 2012.
But he and his wife, Maureen, were in deep financial trouble. They were running up debts on their credit cards and were losing several thousand dollars every month on two vacation homes he had purchased as an investment. But the governor soon learned through his wife that a free-spending businessman from Richmond, Va., had agreed to help them with "this financial situation," as she put it.
Jonnie Williams was the chief executive of Star Scientific, a company that was promoting a dietary supplement made from tobacco. It would be profitable if he could sell it as a pharmaceutical product, and he hoped the state and its medical schools would fund research that could bolster its appeal to the Food and Drug Administration.
Williams let the governor fly to California in his private plane in 2010 so he could explain his plans. And to win favor with the governor and his wife, he lavished them with gifts and cash. He took Maureen shopping in New York and spent $20,000 on designer clothing. He paid the $15,000 cost of their daughter's wedding dinner. McDonnell and his sons went on golf outings paid for by Williams, and the business executive gave the governor undocumented "loans" that came to $120,000 to pay his debts.
His corruption trial featured a photo of McDonnell proudly driving a Ferrari that Williams had lent him for a weekend. On the day that photo was taken, the governor told the state's health director to meet with Williams to discuss possible research on the dietary supplement. The state director was dubious and sent a deputy in his place.
The governor also sponsored meetings and a luncheon at the governor's mansion to help promote the dietary supplement. But in the end, the state and its medical schools said they were not interested and took no action.
When the scheme was revealed, prosecutors charged McDonnell with bribery and corruption, and Williams testified for the government. A jury convicted McDonnell on 11 counts of corruption, and a U.S. Court of Appeals agreed the governor was properly convicted of secretly taking cash and gifts in exchange for "official action."
But in his appeal to the Supreme Court, McDonnell and his lawyers contended he did not take "official action" because he did not order or pressure state officials to fund testing on the dietary supplement. They described the arranged meetings as "routine courtesies."
McDonnell was sentenced to two years in prison, but last year the Supreme Court ordered he remain free pending the appeal.
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