On June 27, a unanimous U.S. Supreme Court overturned the bribery convictions of former Virginia Gov. Bob McDonnell (“Governor”). The Court disapproved of the “boundless” definition of the term “official acts” that allowed McDonnell to be convicted of bribery for merely setting up meetings, taking calls, and inviting people to events for the benefit of a constituent who provided the Governor gifts and loans. While the Court recognized the Governor’s actions were “distasteful” and “tawdry” (the Governor and his wife accepted over $175,000 worth of loans and gifts from the constituent), it also held that setting up meetings, hosting events, or calling another official does not itself rise to an “official act” and therefore, even if a public official receives something of value to arrange a meeting, such activity does not constitute bribery. This unanimous decision requires prosecutors to seek more compelling evidence to prove bribery. No longer will a public official’s acceptance of anything of value in exchange for performing any act constitute bribery. This decision will better inform public officials as to what actions they may take on behalf of a constituent who has donated money to their campaign or given them gifts.
The issue before the Supreme Court was the proper interpretation of the term “official act” in the context of what types of acts a public official cannot perform (or agree to perform) in return for anything of value. The decision laid out the process to establish whether an act rises to the level of an “official act”: (1) identify a “question, matter, cause, suit, proceeding or controversy” that “may at any time be pending” or “may by law be brought” before a public official; and (2) prove that the public official made a decision or took an action “on” that question, matter, cause, suit, proceeding, or controversy, or agreed to do so.
In answering the first element, the relevant “question, matter, cause, suit, proceeding or controversy”:
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. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official.
McDonnell v. United States, No. 15-474, slip op. at 21 (2016). The relevant question or matter cannot be so broad and general as “economic development,” but must be concrete and specific such as should grant money be allocated to a specific study or should a specific study be undertaken. Id. at 17-18.
In answering the second element, which concerns whether the public official performed an “official act” on the pending matter identified, the relevant inquiry is whether the public official made a decision concerning the question or took an action on that matter. Id. at 21. The Supreme Court did not definitely say whether McDonnell’s acts would qualify as “official acts,” leaving that question to a jury, but it did provide guidance on the issue. The decision explained that setting up a meeting, hosting an event, or calling an official to talk about a pending matter does not itself qualify as a decision or action, but that making calls or setting up meetings in a manner to put pressure on another government official to take a specific action is an “official act.” Accordingly, an “official act” no longer can be vague support on a subject or matter, but must involve a specific, concrete act that affects or was meant to affect the actual outcome of the pending question or matter.