Why Bob McDonnell Was Convicted of Extortion

Bob McDonnell didn’t threaten to break anyone’s kneecaps — so how did he end up convicted of extortion? It’s thanks to a federal statute known as the Hobbs Act, one of the quirkier arrows in the public corruption prosecutor’s quiver.


The former Virginia governor and his wife Maureen were convicted last fall of accepting $175,000 in gifts and loans from businessman Jonnie Williams in exchange for agreeing to use the power of the governor’s office to promote Williams’ dietary supplement, Anatabloc. A public official agreeing to take action in exchange for gifts sounds like bribery, and indeed the McDonnell case is widely (and properly) understood as a bribery case. If you review the Indictment, however, you won’t find a charge called “bribery” anywhere.

The essence of the crime of bribery is a quid pro quo, or “this for that” – in exchange for something of value to which she is not entitled, a public official agrees to exercise the powers of her office to benefit the bribe payor. Bribery is the quintessential public corruption offense: the political system is corrupted because a public official is acting not in the best interest of all but in order to benefit the person who paid the bribe.

But the federal bribery statute, 18 U.S.C. § 201, applies only to federal public officials and to those acting for or on behalf of the federal government. In most cases it will not apply to state or local government corruption. Using it was not an option in the McDonnell case. (This, by the way, is why I believe all of the focus on whether McDonnell’s actions qualified as “official acts” under section 201 has been misplaced. For my analysis of the question of “official acts” see my earlier posts here and here.)

Federal prosecutors looking to charge state and local bribery must therefore turn to different statutes. The three most common are 18 U.S.C. § 666 (covering bribery in connection with certain programs receiving federal funds); honest services fraud (a species of mail and wire fraud), and something called “extortion under color of official right” under the Hobbs Act. McDonnell was actually convicted of two counts of conspiracy, three counts of honest services fraud, and six counts of Hobbs Act extortion.

 The Hobbs Act

The Hobbs Act prohibits acts of robbery or extortion that have an effect on interstate commerce. Passed in 1946 and named for its sponsor, Alabama Democrat Sam Hobbs, the Act appears in a section of the criminal code alongside statutes aimed primarily at organized crime and racketeering. Its title is “Interference with commerce by threats and violence” – no mention of bribery.

The link to interstate commerce is basically a jurisdictional hook, necessary to give Congress the power under the Commerce Clause to criminalize offenses historically prosecuted by the states. Even the most trivial effect on interstate commerce will suffice and this requirement usually is easily satisfied, but it is nevertheless an element of the offense that the government must prove beyond a reasonable doubt. (McDonnell’s lawyers actually argued unsuccessfully in their post-trial motions that the government had failed to present sufficient evidence of an effect on interstate commerce.)

The meat of the statute is the requirement of robbery or extortion. Robbery is defined in the usual way as taking property from another against their will through the use of actual or threatened force or violence. Extortion is defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

The word “extortion” conjures up images of a burly guy smacking his palm with a baseball bat while recommending that you pay him a “health insurance premium” – if you want to remain healthy, that is. In extortion, unlike robbery, the victim consents to turn over his or her property but does so under some kind of coercion or duress.

The Hobbs Act prohibition on extortion by force, violence or fear covers this classic “baseball bat” extortion. It applies to extortion by fear not only of physical injury but also of economic injury, such as a computer hacker threatening to crash a company’s website if it does not pay up. But it’s the extortion “under color of official right” clause in the Hobbs Act that has become so important in federal corruption cases.

 Evans v. United States: When Is Extortion Not Really Extortion?

The Supreme Court outlined the contours of Hobbs Act extortion under color of official right in the 1992 case of Evans v. United States. John Evans was a member of the Board of Commissioners of DeKalb County, Georgia. In 1985 and 1986 the FBI was conducting an undercover investigation into public corruption involving rezoning of property in the Atlanta area. An FBI agent posing as a real estate developer had a number of meetings and phone calls with Evans discussing the possible re-zoning of a parcel of land.

In July 1986 the agent gave Evans $7,000 in cash, along with a check for $1,000 made out to Evans’ campaign. Evans did not report the cash on his campaign finance forms or on his income taxes. The government charged that he took the money knowing it was intended to ensure that he would vote in favor of the re-zoning application and would attempt to persuade his fellow commissioners to do the same. On that basis, he was convicted of one count of extortion under color of official right under the Hobbs Act.

In the Supreme Court Evans argued that a payment was not “induced . . . under color of official right” within the meaning of the Hobbs Act unless the public official had taken some specific action to seek out or demand the payment. It was not extortion, he argued, for a public official just to accept the money knowing that it was in exchange for a promised official action – the official must do something to initiate the transaction.

Evans’ argument certainly squared with the common understanding of the term extortion, which brings to mind visions of a public official strong-arming or “shaking down” a victim and demanding payment in exchange for exercising official power. (“Oh, you want that property re-zoned? So what are you going to do for me?”) Extortion connotes some element of duress, and there was no evidence that Evans even requested the payment, much less pressured the agent to make it.

But the Supreme Court disagreed. After a lengthy examination of legal history, the Court concluded that at common law extortion by a public official “was the rough equivalent of what we would now describe as ‘taking a bribe.’” A demand or request by the public official was not an element of the offense. Congress, the Court said, must have had this common-law definition in mind when it passed the statute.

The Court therefore concluded (over a vigorous dissent) that extortion under color of official right requires only that the public official accept a thing of value to which he or she is not entitled, knowing that the payment was made in exchange for some exercise of official power. No demand, shakedown, or other affirmative act of inducement by the public official is required. Evans’ conviction was therefore affirmed.

 Is it Bribery or Extortion?

In the wake of Evans, as the Supreme Court itself basically agreed, there is not much difference between Hobbs Act extortion under color of official right and bribery. This is an odd result for a couple of different reasons.

First, it’s clear that bribery and extortion are in fact distinct crimes and that Congress knows the difference. For example, a companion statute to the Hobbs Act called the Travel Act (18 U.S.C. § 1952) prohibits interstate travel to further any unlawful activity, which is defined to include “extortion, bribery or arson.” 1952(b). If Congress really meant the Hobbs Act to apply to bribery rather than (or in addition to) extortion, it knew how to say so.

Second, as the dissent in Evans pointed out, in terms of criminal liability there is a fundamental difference between bribery and extortion: the status of the person paying the public official. In a bribery case, both parties to the transaction are willing participants and are considered equally culpable. The crime of bribery applies to both the payor (who is seeking to influence the official) and to the payee (the public official agreeing to be influenced) and both may be charged. The federal bribery statute, 18 U.S.C. § 201, reflects this by criminalizing both the bribe payment (§ 201(b)(1)) and the receipt of the bribe (§ 201(b)(2)).

In an extortion case, by contrast, the person paying the public official is considered a victim who paid under duress (physical or emotional) and because they felt they had no choice. As a result, the crime of extortion applies only to the person receiving the payment. There is no express provision in the Hobbs Act for charging the person who turns over the extorted property.

This critical difference between the two crimes supports Evans’ arguments and makes it particularly odd that the Supreme Court would conclude that bribery and extortion by a public official are essentially the same crime. The effect of Evans is that the Court created a unique statutory animal: a bribery statute where only one side of the corrupt transaction may be punished.

(A few courts have held that the payor in a Hobbs Act case may be charged with aiding and abetting the extortion by the official he paid, although other courts disagree. This seems like a reach; charging the “victim” of a crime with aiding and abetting the perpetrator is a strange concept. The holding in Evans may make such a charge theoretically possible, but that simply illustrates what a tortured result Evans is.)

A federal prosecutor looking at a public corruption case and considering the Hobbs Act has to keep in mind this distinction between bribery and extortion. From a prosecutor’s perspective, in a bribery case the payor should be sitting at the defense table with the public official. In an extortion case, the payor is usually your star witness.

If the facts of a case suggest that what took place was a bribery transaction with both sides willingly participating then a Hobbs Act charge likely is not a good choice — at least if you want to charge the payor. Better options would be the federal bribery statute (for federal officials) or honest services fraud, which also applies to both sides of a bribery transaction.

Extortion in the McDonnell Case

In the McDonnell case the government chose to immunize the bribe payor, Jonnie Williams, and have him testify for the prosecution. Since it had already chosen not to charge the payor, the government did not need to worry about the fact that the Hobbs Act would apply only to McDonnell.

Still, even though legally it is perfectly sound and appropriate, it feels a bit incongruous to see the same events charged as both honest services fraud bribery and as Hobbs Act extortion, as they were in the McDonnell case. Theoretically, at least, the two charges describe two quite different factual scenarios, one where the payor is culpable and one where he is not.

In McDonnell’s case, of course, the evidence showed that Jonnie Williams was a more than willing participant in the corrupt transactions. That describes a classic bribery scenario in which Williams is also culpable and could be charged – hence Williams’ need for immunity. Hypothetically, though, if the government had charged McDonnell with only Hobbs Act violations there would have been no ready basis on which to charge Williams – even though as a factual matter that’s absurd.

In accordance with Evans, McDonnell was convicted of simply accepting the gifts from Williams while knowing they were being given in exchange for his agreement to use the power of his office to promote Williams’ product. So McDonnell was convicted of extortion for conduct that was actually bribery, and under the current state of the law that was perfectly normal.

Like I said, the Hobbs Act is quirky.

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