The Key Issues in Bob McDonnell’s Appeal

Update:  On August 11, the Fourth Circuit denied McDonnell’s motion for rehearing and rehearing en banc.  McDonnell will now seek review by the U.S. Supreme Court.

Update:  On July 10, the three-judge panel of the Fourth Circuit unanimously affirmed McDonnell’s convictions.  He is now seeking en banc review by the entire court.  The panel opinion is here

Former Virginia Governor Bob McDonnell’s appeal will be argued tomorrow, May 12, before the U.S. Court of Appeals for the Fourth Circuit in Richmond, VA. McDonnell and his wife Maureen were convicted of multiple counts of corruption for accepting a series of extravagant gifts and sweetheart loans from businessman Jonnie Williams in exchange for using the power of the Governor’s office to promote Williams’ product, Anatabloc.

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The key legal issues in the appeal can be broken down into four categories:

1) Were the things McDonnell did in exchange for the gifts from Williams “official acts” for purposes of federal bribery law?

2) Did the trial judge err by refusing the McDonnells’ request that they be tried separately?

3) Did the trial judge err during jury selection by not probing more thoroughly whether pre-trial publicity had prejudiced any of the potential jurors against the McDonnells?

4) Did the trial judge err in several evidentiary rulings against the defendants?

McDonnell has an impressive array of supporters before the Fourth Circuit. Nearly a dozen amicus briefs were filed on his behalf by groups including the National Association of Criminal Defense Lawyers; six former Virginia Attorneys General; forty-four non-Virginia state Attorneys General; several Virginia law professors; and members of the Virginia General Assembly. To one degree or another, most of these supporters claim that political life in Virginia – if not American democracy itself – will be irreparably harmed if McDonnell’s conviction is not overturned.

I believe these concerns are misplaced. As an example of quid pro quo corruption, the McDonnell case is really not that remarkable. In fact, the most remarkable thing about it is that the central legal argument throughout the case has been about the language of a statute that is not even part of the indictment. How the Fourth Circuit deals with that issue in particular may end up being the key to McDonnell’s fate.

The Definition of “Official Acts” – A Focus On the Wrong Question

By far the most significant issue on appeal, and the one likely to consume most of the court’s attention, is the first: the question of “official acts.” Since before the case was even indicted, the backbone of McDonnell’s defense has been that whatever he may have done for Williams in exchange for the gifts, his actions were merely political courtesies and did not violate federal bribery law because they were not “official acts.” Arguments about this point consume the bulk of the briefs on both sides, as well as most of the amicus briefs.

The term “official acts” comes from the federal bribery statute,18 U.S.C. § 201, which defines it as “any decision or action on any question, matter, cause, suit, proceeding, or controversy” brought before a public official in their official capacity. 18 U.S.C. § 201(a)(3).  Section 201, however, applies only to federal public officials and was not part of the McDonnell indictment. The corruption charges they were convicted of fall under two other federal statutes: honest services fraud and Hobbs Act extortion under color of official right. Both of these statutes operate as bribery by another name and provide a vehicle for federal prosecution of state, local, and even private sector bribery.

As I have argued in an earlier post, however, bribery for purposes of honest services fraud and the Hobbs Act is not limited to the definition contained in 18 U.S.C. § 201. Those statutes apply more broadly to general common law bribery, not to a specific statutory definition. Indeed, not a single case cited in any of the appellate briefs stands for the proposition that bribery under honest services fraud or the Hobbs Act is defined by the language of 18 U.S.C. § 201.

Nevertheless, throughout this case, both sides have taken the position that the government is required to prove McDonnell performed “official acts” as defined in Section 201. It’s not completely clear how the case arrived at this posture, but it is clear that the emphasis on this particular language favors the defense. Had the parties and the court focused on a more generic definition of bribery, the case would have looked quite different.

For example, Virginia state law and the Model Penal Code both define bribery as a public official accepting a pecuniary benefit 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). There is no requirement of an “official act” as defined in Section 201, and the broad application to “recommendations” and “exercises of discretion” certainly seems to cover much of McDonnell’s conduct.

There are scattered references throughout the appellate briefs and amicus briefs to the idea that the definition of bribery in Section 201 may not in fact be the correct standard, with the defense continuing to insist that it is.  In the end, though, for the most part everyone proceeds on the assumption that the language of Section 201 applies, as the parties did during the trial. As a result, much of the legal argument is devoted to whether McDonnell’s conduct amounted to a “decision” or an “action” “on” a “matter, cause, suit, proceeding, or controversy” within the meaning of Section 201’s definition. Rarely has so much appellate ink been spilled over the language of a statute that no defendant in the case was charged with violating.

The Effect of the Focus on “Official Acts”

This obsession with the nature of McDonnell’s actions has caused the real issue to be obscured. In a bribery case the focus is less on the nature of the act itself and more on the corrupt deal: the agreement of the public official to be influenced in the exercise of his or her official powers in exchange for the bribe. In fact, although you’d never know it from the pleadings in this case, even federal bribery under Section 201 does not require an “official act” – that is only one of three alternative ways to violate the statute. The definition of “official act” is actually much more important to the lesser crime of gratuities (also in Section 201) than it is to bribery, and indeed many of the main cases relied upon by McDonnell are gratuities cases, not bribery cases. The implication of many of the arguments that federal bribery law always requires “official acts” is simply incorrect.  What bribery does always require is the element of influence.

Bribery is considered corruption because it alters the behavior of a public official, who acts not for the good of all as he or she is sworn to do but in response to an improper benefit received from a particular individual. This corrupt exchange in a bribery case is often referred to as the quid pro quo. In McDonnell’s case, the excessive focus only on the “quo” – McDonnell’s actions — is what leads to the fears expressed by the defense and many of the amicus briefs about the implications of McDonnell’s conviction. They argue that if the types of things McDonnell did for Williams are criminalized, it will “wreak havoc” on the political life of Virginia, “criminalize wide swaths of political life,” and make “virtually every elected official in the Fourth Circuit a criminal.”

What these arguments fail to grasp is that it is not the nature of McDonnell’s actions that’s the problem: it’s the corrupt deal that led to them. Routine political acts and favors done for supporters are generally not bribery not because they are not “official acts,” but because they are not done as part of a corrupt quid pro quo.  Law abiding politicians who are simply serving their constituents and not making corrupt deals have nothing to fear from McDonnell’s conviction.

The defense and various amici further obscure this point by noting that it’s possible for a campaign contribution to be a bribe. As a result, they claim, if the McDonnell conviction is upheld then any politician who takes any kind of routine action for someone who has donated to their campaign would risk being branded a felon.

Again, the flaw in this argument is that it focuses on only one side of the equation – in this case, the quid – instead of focusing on the corrupt agreement itself. Legal campaign contributions generally do not support criminal charges simply because they are not considered part of a corrupt bargain. For better or worse we have a system of privately financed campaigns in this country, where it is legal and appropriate for supporters to contribute to politicians in the hope that they will act in certain ways and for politicians to respond to the concerns of their lawful supporters. Properly reported campaign contributions within legal limits, without more, are not corrupt.

Gifts like those in the McDonnell case are another matter. Secret sweetheart loans, payments for a daughter’s wedding, expensive golf outings, Rolex watches, and steps taken to hide all of the above from the public – these are all things that, unlike legal campaign contributions, have the whiff of corruption about them. Contrary to the defense’s implication, not all quids are created equal.

A campaign contribution can be a bribe – in rare cases – but the other indicia of corruption must be much greater, including an explicit agreement by the politician to take a particular action in direct exchange for the contribution.  The point is that in a bribery case it is the overall corrupt deal and the question of influence that has to be examined, not just the quid, and not just the quo.

The focus on “official acts” has been largely a diversionary tactic that allows the defense to deflect attention away from the corrupt deal that the jury, by its verdict, necessarily found existed between Williams and the McDonnells. But the logical implication of the defense argument is that a businessman could secretly give the Governor tens of millions of dollars in exchange for an agreement to host an event at the Governor’s mansion and that deal would not be illegal because it did not involve an “official act.” That is definitely not the law – not even in Virginia. The powers and resources of the Governor’s office are not up for sale to the highest bidder.

The real issue is not whether the actions McDonnell took to help Williams met some precise statutory definition. The crux of the case is that he exercised his discretion and the powers of his office to benefit Williams in exchange for a two-year pattern of secret gifts and loans. That is classic quid pro quo corruption. The interesting question on appeal will be whether the Fourth Circuit focuses on that fact or gets sidetracked into debates about the meaning of a statute that is not even part of the case.

The Other Three Issues: Not Likely to Be a Major Factor

Voir Dire:  The defense also is challenging the process by which the jury was selected, known as voir dire. Their claim is that the judge failed to probe sufficiently whether negative pretrial publicity about the case might have prejudiced potential jurors against the McDonnells.

The process of jury selection is firmly committed to the discretion of the trial judge and it’s very rare for cases to be overturned on this basis. Appellate courts recognize that, particularly when it comes to pre-trial publicity, the trial judge is in the best position to evaluate what the nature of that publicity has been and how best to deal with it, because the judge also lives in the same community. The judge is also in the best position to judge the demeanor and credibility of the potential jurors standing in the courtroom and responding to questions about their ability to be fair and impartial.

Another important factor is that the jury acquitted the McDonnells on several counts of the indictment. This suggests a jury that did its job and considered each charge individually on its merits, not one that was biased and predisposed to convict regardless of the evidence.

Although there was a lot of pretrail publicity, this is not a gruesome murder, racially-charged case, or other case where there might be heightened concern about the passions of the community being inflamed. It’s possible this could be a sleeper issue, with some of the appellate judges concerned that the voir dire was a bit too perfunctory. In the end, though, I doubt this argument will gain much traction in the Court of Appeals.

Severance: McDonnell also argues that it was error for the trial judge to refuse to try the Governor and his wife separately. He claims that if had been tried alone his wife would have testified at his trial and provided helpful evidence.

There is a presumption that co-defendants will be tried together, particularly in a conspiracy case, and severance is rarely granted. It may be true that Mrs. McDonnell’s testimony would have been useful to the Governor, but that’s not the standard. Separate trials are only required if the failure to sever the defendants would deprive the defendant of a fair trial and result in a miscarriage of justice.

As the government has pointed out, much of the proffered testimony from Mrs. McDonnell ended up being presented to the jury through other witnesses. Although she may have denied that the Governor knew about some of the gifts, she could not deny that he knew about many of the others, including the expensive golf outings and the loans from Williams that he personally requested. Much of her testimony would have been vigorously challenged and impeached by the government. And of course her effectiveness as a witness would have been limited by her obvious bias and motivation to exonerate both her husband and herself. The appellate court is extremely unlikely to second-guess the trial judge’s refusal to sever the trials.

Evidentiary Rulings:  Finally, the defense argues that the judge erred in a number of the evidentiary rulings throughout the case. These include the judge’s refusal to allow defense expert testimony about Virginia’s financial disclosure forms and to admit evidence about McDonnell’s completion of those forms; the decision to admit evidence suggesting that the Governor was actively looking for places where he could play golf for free; the decision to allow evidence about another $23,000 golf vacation paid for by another supporter of McDonnell’s that the Governor failed to report; the refusal to allow additional evidence and defense expert testimony about the immunity agreement granted to Jonnie Williams; and the failure to allow the defense access to the contents of William’s iPhone.

A judge is called upon to make dozens, if not hundreds, of such rulings during a lengthy trial like this one, and those rulings will not be disturbed unless the judge abuses his or her discretion. The government argues that each of these rulings was correct. Even if any of them was an error, however, it’s extremely unlikely that the error would be significant enough to justify a new trial.

The Bottom Line

The “official acts” question has been the central issue throughout this case and will likely determine the outcome of the appeal.  A good result would be for the Fourth Circuit to write an opinion recognizing that, even though the government was not required to prove the exact elements of Section 201, the evidence at trial was more than sufficient to establish common law, quid pro quo bribery.  McDonnell’s best hope is that the Court of Appeals gets bogged down in all the debate about “official acts” and loses sight of what the case is really about: a corrupt arrangement where he and his wife put the powers of the Governor’s office up for sale.

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