Former Virginia Governor Robert McDonnell and his wife Maureen were convicted in federal district court on September 4, 2014 on multiple counts of conspiracy and public corruption. As expected, they have asked the judge to throw out their convictions based on a number of alleged legal errors during the trial. It’s an uphill battle, as many of their arguments were already rejected earlier by the same judge, but those legal arguments also will form the groundwork for the appeal to the U.S. Court of Appeals for the Fourth Circuit that will follow their sentencing.
One of the central defense arguments in their new trial motions is that the corruption convictions cannot stand because any actions by McDonnell in response to the gifts he received from Jonnie Williams did not constitute “official acts” within the meaning of the federal bribery statute. This has been a key issue throughout the entire case. But should it have been?
The definition of “official act” at issue comes from the federal bribery statute, 18 U.S.C. §201. Section 201(a)(3) provides:
the term “official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.
Since before the case was even indicted, the defense has argued that even if McDonnell promoted Jonnie Williams’ product Anatabloc by, for example, holding a product launch event at the Governor’s mansion or recommending that Virginia officials use it in research studies, these were just efforts to help a Virginia business and did not constitute “decisions” or “actions” on a “matter, cause, suit, proceeding or controversy” under this definition.
The government agreed throughout the trial that this was the correct legal standard and argued successfully to the judge and jury that the former Governor’s actions did qualify as “official acts.” The trial judge also agreed that this was the relevant question and included the definition of “official acts” from 18 U.S.C. §201(a)(3) in his instructions to the jury.
I think this is the wrong legal standard. I don’t think the government should have been required to prove that McDonnell’s conduct met this definition of “official act” in order to convict him. And if I’m right, it means the McDonnells got more than just a fair trial on the corruption issues — they got a trial where the legal cards were actually stacked in their favor.
Federal Bribery vs. Honest Services Fraud
The explanation requires getting down in the weeds a bit with these criminal statutes, so bear with me. As I noted, the definition of “official act” that has been central to this case comes from the federal bribery statute, 18 U.S.C. §201. Under that statute a public official is guilty of bribery if he/she “corruptly demands, seeks, receives, accepts, or agrees to receive or accept” anything of value in exchange for being influenced in the performance of any “official act,” as defined above. The statute, however, applies only to federal public officials. A state governor generally doesn’t qualify, which is why the McDonnells were not charged under this law.
The corruption charges in the McDonnell case are Hobbs Act extortion under color of official right and honest services wire fraud, the two most common federal vehicles for charging state and local public corruption. The Supreme Court has held that Hobbs Act extortion under color of official right is basically the equivalent of bribery. Honest services fraud used to apply to a wider range of allegedly fraudulent activities, but in the landmark 2010 case of Skilling v. United States the Supreme Court limited the scope of the statute and held that it applies only to conduct that amounts to bribery or kickbacks.
Both the Hobbs Act and honest services fraud essentially operate as “bribery by another name” when it comes to federal prosecution of state and local corruption. They allow federal prosecutors to charge bribery against those who, like McDonnell, do not qualify as federal public officials under 18 U.S.C. §201. (For the rest of this discussion I’m going to focus on honest services fraud, although I think the end result is the same for the Hobbs Act as well.)
So the McDonnell defense syllogism goes like this: 1) McDonnell is charged with honest services fraud, and Skilling held that honest services fraud requires proof of bribery; 2) the federal bribery statute, 18 U.S.C. §201, requires that in exchange for a benefit the public official performed “official acts;” and therefore 3) to prove honest services fraud, prosecutors must show that McDonnell performed “official acts” as defined in the federal bribery statute.
The principal flaw in this argument is that the Skilling Court said honest services fraud was limited to bribery, not to “bribery as defined in 18 U.S.C. §201.” In fact, it makes absolutely no sense to suggest that when the Skilling Court said “bribery” it was referring to the specific terms of the federal bribery statute.
One reason it makes no sense is that honest services fraud applies to state and local public officials like McDonnell, who would not be subject to bribery charges under §201. Honest services fraud also applies to private sector bribery, such as an employee who violates his duty of honest services to his employer by accepting payments from a competitor company to sell his employer’s secrets. (Skilling itself was a private sector honest services fraud case, involving former Enron executive Jeff Skilling.) Private sector bribery likewise is not covered by 18 U.S.C. §201 and private individuals cannot, by definition, perform “official acts.” It cannot be the case, therefore, that “bribery” for honest services fraud is equivalent to bribery as defined by 18 U.S.C. §201, because much of the bribery unquestionably covered by honest services fraud would not violate §201.
Further evidence comes from the method the Skilling Court used to determine what Congress meant by “honest services” when it passed the honest services statute in 1988. The Court surveyed the honest services cases decided before that law was passed and concluded that because the overwhelming majority of those cases involved bribes or kickbacks it was appropriate to limit the definition of honest services fraud to such cases. But most of the cases the Court relied upon involved state and local corruption or private sector honest services fraud — conduct that would not have violated the federal bribery statute.
In other words, when the Skilling Court defined honest services fraud it looked to the broad universe of bribery law and drew upon a large number of cases that would not have fallen under 18 U.S.C. §201. Indeed, the Court expressly noted (footnote 45) that honest services fraud, as it was defining it, reached well beyond the scope of 18 U.S.C. §201. When it used the term “bribery” the Court was referring not to the precise terms of the federal bribery statute but to a more generic or common-law definition that would encompass bribery of officials at the federal, state or local level as well as private sector bribery.
Does this mean that state officials such as McDonnell are held to a different, and possibly higher, standard than federal officials? Not at all – federal officials also may be charged with honest services fraud under the same standards. All it means is that honest services fraud bribery and18 U.S.C. §201 bribery of a federal official are not identical. Any other conclusion would render the Skilling decision incoherent.
The Essence of Bribery
Bribery is an ancient common-law crime that was around long before Congress attempted to define it; there is nothing magical about the formulation in §201. The essence of bribery is a quid pro quo: the government must show that in exchange for something of value the bribe recipient agreed to be influenced in the discretionary exercise of his or her powers. It’s the influence component that is the key, more than the precise nature of the action taken: bribery influences the recipient of the bribe to act not in the best interest of those to whom the recipient owes a duty of loyalty but rather to benefit the person who paid the bribe.
So where could a federal court look for a definition of bribery to use in an honest services fraud case, if not to §201? Courts frequently begin such questions by looking at legal dictionaries. My Black’s Law Dictionary defines bribery as offering or giving a thing of value “to influence action as an official or in discharge of a legal or public duty.” Another standard source, the Model Penal Code (§240.1), defines bribery as agreeing to accept “any pecuniary benefit as consideration for the recipient’s decision, opinion, recommendation, vote or other exercise of discretion as a public servant.” The heart of the bribery concept is the same: the quid pro quo, exchange of something of value to influence an official’s discretionary action. But the language is more general than §201(a)(3) and does not include the specific focus on a “question, matter, cause, suit, proceeding or controversy.”
Other possible sources include other laws. The federal bribery statute is not the only bribery law out there. In a case involving the Virginia governor it might make sense for a court also to examine the Virginia state bribery statute, since it is the citizens of Virginia to whom McDonnell owed the duty of honest services. Virginia law provides that a public official is guilty of bribery if he/she accepts any “pecuniary benefit” from another in exchange for being influenced in a “decision, opinion, recommendation, vote or other exercise of discretion as a public servant.” VA Code §18.2-447(2). Again the heart of the bribery offense is the same: the official being influenced in his or her actions by the benefit paid. But this definition, particularly the references to the official making a “recommendation” or the “exercise of discretion,” also is broader than the definition of “official acts” in 18 U.S.C. §201. It would seem clearly to cover some of the actions taken by McDonnell, such as recommending that Virginia researchers undertake a study of Anatabloc or exercising his discretion to use the Governor’s mansion for a product launch event. If the trial judge had also used this statute to inform his jury instructions on what constitutes bribery for honest services fraud, the instructions would have looked quite different.
I’m not arguing that a Virginia state statute should govern a federal prosecution. The key point is that it is the common-law offense of bribery that must be shown to establish honest services fraud, not conduct that meets the precise terms of a single statutory definition. Nevertheless, in the McDonnell case many trees lost their lives in the battles over whether McDonnell’s conduct amounted to a “decision” or “action” on a “matter” or “proceeding” or otherwise fit the precise terms of 18 U.S.C. §201(a)(3). That battle is still being waged in the new trial motions. The fight should have been over the essence of bribery, the quid pro quo, and whether McDonnell agreed to exercise the discretionary powers of his office in exchange for the gifts. Instead, much of the battle was over whether the quo in this case happened to match the exact terms of only one of the many possible formulations of the crime of bribery — and one that comes from a statute with which McDonnell was not, and could not be, charged.
(One question all of this raises is why the federal definition of “official act” is so specific and relatively narrow. The reason has to do with the fact that the same statute and same definition of “official act” apply to two different crimes, bribery and gratuities. In addition, there are other ways to violate the federal bribery statute that do not require proof of an “official act.” I’ll explore these issues in more detail in a future post.)
The Significance of United States v. Jefferson
How did the §201 definition of “official act” become such a central part of McDonnell’s case? Both sides in the case, as well as the trial judge, were heavily influenced by the important corruption case of United States v. Jefferson. Jefferson is a former Louisiana Congressman who was prosecuted and convicted in 2009 for public corruption, also in the Eastern District of Virginia. On the appeal of Jefferson’s case the Fourth Circuit (which also will hear McDonnell’s appeal) spent a great deal of time discussing the proper definition of “official act” under 18 U.S.C.§201, and upheld the trial court’s instructions concerning that term. McDonnell’s trial judge modeled his own jury instructions on those given in Jefferson, including telling the jury they had to find that McDonnell committed “official acts” as so defined.
Jefferson, however, was a federal public official who was actually charged with violating 18 U.S.C. §201. The court in Jefferson had to discuss the definition of “official act” under the federal bribery statute, and the government had to prove that Jefferson performed “official acts,” because that was the actual crime of which Jefferson was convicted. (Jefferson also was convicted of honest services fraud, but once he was found guilty of federal bribery the Skilling requirement that bribery was involved was obviously satisfied and there was no need to look further.)
The Jefferson court, however, had no occasion to explore the real issue in McDonnell’s case: is the concept of bribery in honest services fraud limited only to the precise definition of bribery found in §201, particularly when the defendant is not charged under §201? As demonstrated above, I believe the answer to that question is “no.” Nevertheless, from the beginning of the McDonnell case, the defense, prosecution, and judge all agreed that Jefferson was the governing legal authority and that Jefferson‘s discussion of “official acts” defined what the government had to prove.
A Narrowed Playing Field
I’m confident the government recognizes this issue. In a defense motion for disclosure of grand jury materials filed on January 21, 2014, the very day the indictment was returned, the defense referred to the government taking the position that bribery under honest services fraud and the Hobbs Act is not limited to simply the “official acts” definition under 18 U.S.C. §201. (There is no information in that pleading about where and when the government made that argument; perhaps it was in pre-indictment meetings with the defense team.) In that same motion the defense argued against this broader definition and advanced their claim, made consistently throughout the case, that the government was required to prove “official acts” as defined in 18 U.S.C. §201.
If that was indeed the government’s initial position, I believe they were correct. By the time they responded to that defense motion in February, however, it appears the prosecution had made a tactical decision not to fight that fight and to agree that proving “official acts” as defined in §201(a)(3) was required. From that point on, up to and including today, both sides and the judge have proceeded with the case on the assumption that this is the proper standard.
It appears to me that the defense made an aggressive effort from day one to narrow the playing field to the defense’s advantage, and the government ultimately agreed to compete on that field. Given the jury’s verdict it’s hard to fault the government for that decision — you always have to choose your battles. I wonder, though, if it’s a decision they will end up regretting if it is used against them in the future, with other defendants arguing in every honest services case that §201(a)(3) controls.
In the new trial motions, the defense argues that even with this narrowed playing field the judge’s jury instructions on “official act” were flawed. I suppose at this point the government is somewhat locked in to arguing on the “official acts” turf before the trial judge, since it agreed that was the appropriate standard. At least on appeal, though, if I were representing the government, one of my arguments would be not only was the judge’s instruction on bribery legally sound, but it was actually a more favorable instruction for the defense than the law requires.
In other words, the McDonnells got a break when it came to the jury instructions on public corruption, and they were still convicted. That’s going to make it that much harder to argue that the jury’s verdict should be overturned.
Thoughts? Questions? A different point of view? Leave me a comment below.
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