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Supreme Court May Be Leaning Toward Voiding Ex-Va. Governor's Corruption Conviction

Former Virginia Gov. Bob McDonnell speaks outside the Supreme Court in Washington on Wednesday after the justices heard oral arguments on the corruption case against him.
Andrew Harnik
Former Virginia Gov. Bob McDonnell speaks outside the Supreme Court in Washington on Wednesday after the justices heard oral arguments on the corruption case against him.

The Supreme Court appears to be leaning in favor of reversing the corruption conviction of former Virginia Gov. Bob McDonnell, based on Wednesday's oral arguments.

At the case's core is how to determine a clean "official act" from a corrupt one, and where the line is.

Justice Elena Kagan said during oral arguments that the court is concerned both about overzealous prosecutors and giving a free pass to corrupt politicians.

Many of the justices — both liberal and conservative — appeared dissatisfied with the standard that the government is currently using to seek convictions on public corruption charges.

Justice Stephen Breyer said he doesn't want a situation where all of the power is in the hands of the Justice Department to decide who is prosecuted for a felony and who is not.

"Official acts" covers a broad range of activities that are part of doing business as a politician — from writing a letter asking a federal agency to look into an issue to attending meetings and attending social events.

The justices brought up dozens of theoretical examples to illuminate just how difficult it is to determine what constitutes a felony:

  • Is it a felony for someone to give a government official $1,000 to attend a meeting with a group of officials? According to the government, it is — it's pay-to-play. But the other side says it's not, because the person paying isn't actively seeking to shape a government decision.
  • What if a governor goes fishing with the CEO of a company who wants to discuss tax deferral programs? What if that same CEO suggests a weeklong trip to Hawaii where the governor can bring his family and they can discuss those tax deferrals? Is this obtaining something of value in exchange for influencing government policy?
  • The justices seemed to be seeking a federal standard that could be administered — and didn't appear satisfied with any of the suggestions presented.

    Ultimately, everyone in the room appeared frustrated at the difficulty of coming up with a standard that's narrow enough to exclude ordinary correspondence between politicians and federal agencies on behalf of their constituents or companies but would penalize people who take bribes.

    As you may have heard on Morning Edition, this case stems from favors that McDonnell and his wife did for a Virginia businessman in exchange for loans and luxury gifts.

    The businessman, Jonnie Williams, was seeking FDA approval for a dietary supplement made by his company, Star Scientific. Because he couldn't afford scientific testing, he wanted two Virginia universities to carry out the research. Here's more:

    "Soon, the governor's wife would ask Williams for a $50,000 loan, which he provided, plus help in defraying the costs of their daughter's wedding. Williams called the governor to confirm that he knew about the loan, and McDonnell thanked the businessman for his financial assistance. Three days later, McDonnell instructed an aide to forward material about Williams' company to Virginia's secretary of health. ...

    "But, importantly, the research sought by Star Scientific never actually took place.

    "None of the gifts to the McDonnells were illegal under state law, but the federal government eventually charged McDonnell and his wife with 11 counts of conspiracy to commit fraud under federal law. McDonnell himself was accused of depriving the state's citizens of his honest services by accepting bribes in exchange for performing 'official acts' to benefit Williams' company.

    "McDonnell said from the get-go that while his judgment had been in error, he did nothing illegal."

    The government argues that McDonnell's actions were clearly corrupt, while the defense lawyers say they were simply "routine political activities."

    Speaking to reporters outside the court, McDonnell said, "I want to say, as I've said for the last 39 months, that never during any time in my last 38 years of public service have I ever done anything that would abuse the powers of my office." He added: "I know the justice system will get this right."

    The justices will meet Friday to vote on the case. They're expected to rule at the end of June.

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    Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
    Merrit Kennedy is a reporter for NPR's News Desk. She covers a broad range of issues, from the latest developments out of the Middle East to science research news.