Last week, in McDonnell v. United States, the U.S. Supreme Court vacated the bribery convictions of Bob McDonnell, the former governor of Virginia. In doing so, the unanimous Court rejected prosecutors’ expansive interpretation of “official act,” a term at the core of several public-corruption statutes. Finding the government’s interpretation inconsistent with the statutory text and precedent, the Court also found that such a broad sweep could ensnare ordinary constituent services by public officials, thereby raising due process concerns.
Indictment and Trial
In January 2014, McDonnell was indicted for accepting loans, gifts and other things of value from Virginia businessman Jonnie Williams in exchange for arranging meetings, hosting events and contacting other public officials on Williams’ behalf. Specifically, the government charged McDonnell with committing and conspiring to commit honest services fraud and Hobbs Act extortion, as well as making false statements. Both the fraud and extortion counts turned on the interpretation of “official act,” a term referenced from the federal bribery statutes, 18 U.S.C. § 201. Under § 201, an “official act” is “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.” Based on that definition, the government was required to prove that McDonnell committed or agreed to commit an official act in return for the loans or gifts from Williams.
At trial, the government argued that McDonnell had committed several different official acts—arranging meetings with government officials, hosting events to encourage Virginia universities to study Williams’s product, contacting government officials, promoting Williams’ products with government officials, and recommending that such officials meet with executives at Williams’ company to discuss its products. In his defense, McDonnell conceded that he accepted the loans and gifts, but countered that the activities described by the government were things he did “thousands of times” for constituents and that he did not ask his staff to do anything more than meet with Williams.
Conviction and Appeal
The jury convicted McDonnell on the fraud and extortion charges, while acquitting him on the false statement charge. He appealed, and the Fourth Circuit affirmed. The Supreme Court granted certiorari to address the proper interpretation of “official act.”
After considering “the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell,” the Court rejected the government’s “expansive” interpretation of an “official act.” Instead, the Court adopted a more constrained view of the term.
Analysis of Statutory Text
The Court first focused on the second part of the statutory definition—a question, matter, cause, suit, proceeding or controversy. Declining to adopt the government’s view that “nearly any activity by a public official” constitutes a question or matter, the Court determined that, to qualify as a question or matter under the statute, the activity must involve a “formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee.” In the Court’s view, arranging a meeting or making a typical call was not “of the same stripe” as a lawsuit or committee hearing and therefore did not qualify as a “question” or “matter” under § 201(a)(3).
Turning to the first part of the statutory definition, the Court next considered whether those type of workaday activities could constitute a “decision” or “action” on a different question or matter. In that regard, the Fourth Circuit found that three questions or matters were at issue: (1) whether researchers at Virginia universities would initiate a study of Williams’ product; (2) whether a state commission would provide grant money to study that product; and (3) whether the product would be included among covered drugs in Virginia’s state-employee health plan. The Supreme Court agreed that each of those was concrete and focused enough—and involved enough formal exercise of governmental power—to qualify as a question or matter under § 201(a)(3).
Nonetheless, relying on United States v. Sun-Diamond Growers of Cal. and United States v. Birdsall, the Court found that setting up meetings, hosting events, and calling other officials constituted an “action” or “decision” on any of those three questions or matters. Simply put, “something more” than merely engaging in those activities is required. Rather, “the public official must make a decision or take an action on that question or matter or agree to do so.”
Based on these guidelines, the Court found that “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.’”
Due Process and Federalism Concerns
Aside from the textual analysis, the Court noted concern about the impact a broader definition could have on conscientious public officials who routinely engage in similar activities as part of good constituent service. The Court further cited federalism and due process concerns. While finding McDonnell’s receipt of lavish gifts as “distasteful,” the Court feared that a conviction based on such activities could chill officials’ basic constituent services. It also noted that McDonnell did not violate Virginia’s ethics laws and that the Court was ill-suited to set “standards of good government” for state and local officials. Finally, the Court flatly rejected allowing a broad interpretation and leaving it to prosecutors’ discretion to “use it responsibly.” Rather, when a “statute [in the public-corruption field] can be linguistically interpreted to be either a meat axe or a scalpel,” it should be considered “the latter.”
In light of the Court’s definition of official act, it found the Fourth Circuit’s jury instructions constituted error that was not harmless. As a result, it vacated McDonnell’s convictions and remanded for further consideration based on the Court’s clarified definition.
General, routine actions such as setting up meetings, hosting events, and expressing generalized support will not, standing alone, rise to official acts to support a bribery charge.
The greater the formality and specificity of the act, the more likely it is to be considered an official act.
An agreement to make a decision or take action could constitute an official act regardless of whether the agreed-upon end actually occurred.
Courts may take a more deferential view toward conduct that does not run afoul of state ethics guidelines