On June 27, 2016, in an 8-0 decision, the U.S. Supreme Court reversed and remanded to the Fourth Circuit the conviction of former Virginia Governor Robert McDonnell on honest services fraud charges and charges that Governor McDonnell unlawfully obtained property under color of official right. Based on oral arguments in the case heard by the Court in April 2016, Supreme Court observers predicted that the ruling was likely to go in the governor’s favor. Nonetheless, the Court surprised many with a unanimous decision and with the extent to which the Court narrowed the definition of an “official act” that the government is required to show that a public official committed or agreed to undertake in return for something of value in order to prove a violation of federal law.
The McDonnell decision further scales back the scope of the federal honest services wire fraud statute, which was notably limited by the 2010 Supreme Court decision in Skilling v. United States.1 In Skilling, a 6-3 decision, the Court held that the prohibition against “a scheme or artifice to deprive another of the intangible right of honest services” encompasses only bribery and kickback schemes. The Court overturned Skilling’s conviction for conspiracy to commit wire fraud, money or property wire fraud and securities fraud under the honest services fraud statute. In the McDonnell decision, the Court again limited the applicability of the statute. The Court held that to obtain an honest services fraud conviction on a theory that bribes were paid in return for “official acts,” the government must allege and prove beyond a reasonable doubt that the defendant is a public official who made or agreed to make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy” that was specific and focused and that was pending or that may have been brought before any public official.2
Factual Background and Trial Court Verdict
Governor McDonnell and his wife were charged in January 2014, at the conclusion of the governor’s term in office, with corruption charges relating to unlawfully accepting $175,000 of personal loans, trips and vacations, expensive gifts, and other benefits from the chief executive of a company that had developed a nutritional supplement for which it was seeking university research and funding for the studies. According to the government, in return for the financial benefits, Governor McDonnell engaged in conduct amounting to unlawful “official acts” encouraging support of product testing in violation of federal bribery law, including arranging meetings with Virginia state and university officials to discuss and promote the product; hosting and attending events at the Governor’s Mansion designed to encourage Virginia university researchers to conduct research studies; facilitating relationships between the nutritional supplement company and Virginia government officials; and promoting the use of the product.
Following a five-week trial, Governor McDonnell was convicted on 11 corruption counts involving depriving Virginians of the governor’s honest services in violation of 18 U.S.C. §§ 1343, 1349, and unlawfully obtaining and conspiring to obtain property under color of official right in violation of the Hobbs Act, 18 U.S.C. § 1951.3
Supreme Court Ruling Vacating and Remanding Conviction
After the Fourth Circuit affirmed his conviction, Governor McDonnell appealed the decision to the Supreme Court, challenging, among other aspects of the district court proceedings, the trial court’s jury instructions for honest services wire fraud and Hobbs Act violations. The instructions included the definition of bribery set forth in 18 U.S.C. § 201, which criminalizes a public official’s demand or receipt of anything of value in return for “being influenced in the performance of any ‘official act.’” Section 201(a)(3) defines an official act as “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.”
On appeal, the government took the position that “arranging a meeting, contacting another public official, or hosting an event – without more – concerning any subject, including a broad policy issue such as Virginia economic development” constitutes an official act under Section 201(a)(3).4 Governor McDonnell argued that official acts under the statute must be limited to those that “‘direct a particular resolution of a specific governmental decision.’”5
In the decision written by Chief Justice John Roberts, the Court adopted what it described as “a more bounded interpretation of ‘official act’” than that argued by the government or upheld by the Fourth Circuit.6 The Court held that commonplace activity like arranging a meeting does not amount to a “question, matter, cause, suit, proceeding or controversy” that is pending or may be brought before a public official, and therefore that activity cannot – without more – meet the definition of official act. The Court found that the term official act requires a decision or action on a question or matter pending before a public official, and commonplace activities like arranging meetings and hosting events do not meet the definition.
A decision to the contrary, according to the Court, would “raise significant constitutional concerns” and give rise to a scenario where “nearly anything a public official accepts – from a campaign contribution to lunch – counts as a quid; and nearly anything a public official does – from arranging a meeting to inviting a guest to an event – counts as a quo.”7 The Court noted that conscientious public officials who arrange meetings for constituents, contact other officials on their behalf, and include them in events would be wary of doing so in even the most benign situations, including where the constituent or a constituent group had given campaign contributions or invited the official to an event they were holding. Citizens with legitimate requests for assistance might be dissuaded from participating in “democratic discourse.”8
In addition, engaging in close analysis of the statutory language, the Court reasoned that a matter “pending” or that “may by law be brought” before a public official suggests something “that is relatively circumscribed – the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete.”9 The Court held that Governor McDonnell’s overall priority of supporting Virginia economic development was not “focused and concrete” enough to be a matter “pending” before a public official. Conversely, questions relating to whether researchers at any of Virginia’s state universities would conduct studies of a dietary supplement, whether a state commission would allocate grant money for the studies, and whether the health insurance plan covering state employees would include the dietary supplement as a covered drug, qualified as questions or matters under Section 201(a)(3). The Court stated, “Each is focused and concrete, and each involves a formal exercise of governmental power that is similar in nature to a lawsuit, administrative determination, or hearing.”10
The Court held that Governor McDonnell’s alleged conduct could not be the basis for honest services fraud or Hobbs Act charges under the district court’s jury instructions because they were overinclusive in terms of the conduct that the jury could have found comprised unlawful official acts. However, the Court was careful to note the limits of its ruling. The Court stated that setting up a meeting, hosting an event or making a phone call is not always “an innocent act” free from criminal culpability. A public official who undertakes one or more of these activities related to a matter pending before another official could be charged with attempting to pressure or advise the other official on a pending matter. Where a public official undertakes those activities in exchange for a thing of value, the conduct is unlawful.
The Court vacated the convictions and remanded the case. The Court held that in determining whether to order a new trial or dismiss the charges, the Fourth Circuit should determine whether the record reflects sufficient evidence that Governor McDonnell committed an official act, or that he agreed to do so.
Impact of the McDonnell Decision
The Court’s focus in McDonnell on the broad interpretation of punishable official conduct highlights a growing concern among jurists, lawyers and legislators over the over-criminalization of conduct that is not obviously criminal. This concern is highlighted in the area of public corruption, where the line between unlawful quid pro quo and permissible access to government is not always clear.
With its decision, the Court reaffirmed the principle that a defendant must have fair notice that his conduct is criminal before being held to account for it, and more clearly defined the line between permissible activity and unlawful conduct. Citing prior Supreme Court precedent, including United States v. Sun-Diamond Growers of California,11 the McDonnell decision provides examples of conduct that does not rise to the level of unlawful official acts, while specifying the test for identifying conduct that falls on the wrong side of the line.
In addition to the potential for a changed outcome in the government’s cases against former Governor McDonnell and his wife, the Supreme Court’s decision in McDonnell also could impact other pending high-profile corruption cases of public officials facing similar charges, like former New York Assemblyman Sheldon Silver, former New York State Senator Dean Skelos, and U.S. Senator Robert Menendez. The government may find itself defending these convictions on the ground that the existing evidence meets the new more narrow interpretation of the statute.
Another effect of the McDonnell decision may be similar to that which followed the Court’s decision in Skilling. After the Court imposed limits on the applicability of the honest services fraud statute in that decision, the government less frequently charged cases under the honest services wire fraud statute where the theory of the case could be formulated under another criminal statute. Similarly, the McDonnell decision may result in fewer cases charged under the honest services wire fraud and other statutes. The impact of the Supreme Court’s McDonnell decision extends to several corruption-related statutes, and will impact cases involving violations of statutes that require proof of an unlawful official act by the defendant, including Hobbs Act extortion, federal program bribery, bribery-based honest services fraud and bribery charged under 18 U.S.C. § 201.
Although the decision may again steer the government in the direction of charging cases under alternative theories that do not require proof of an official act, the government may find more exacting pleading and proof requirements from other criminal laws that could be used to charge the same conduct. Thus, the McDonnell decision is likely to bring increased predictability for public officials and their constituents in the conduct that the government will seek to criminally punish as unlawful corruption and in charges that the government may bring.