The day will come when jurisprudence following the Supreme Court's landmark decision in McDonnell v. United States, 136 S. Ct. 2355 (2016), will have developed to the point that legal scholars and professionals can write of "McDonnell and its progeny." Today, we have only Silver and Menendez–high-profile public corruption cases accusing officials of accepting bribes in return for committing an "official act," but resulting in exoneration (for the time being) under McDonnell.
We start with a brief history of McDonnell, as told by counsel who lived through the trial and initial appellate defeats armed with an unwavering belief that DOJ misunderstood what legally constituted an "official act."
Federal prosecutors charged former Virginia Governor Robert McDonnell with fraud and extortion based on his (and his wife's) relationship with a Virginia businessman named Jonnie Williams. Prosecutors had to prove that Governor McDonnell had committed or agreed to commit an "official act" in exchange for benefits. Their theory was that McDonnell had brokered meetings, hosted events, and made calls to assist Williams and his public company, Star Scientific, with research and development of a nutritional supplement. Prosecutors argued that McDonnell did all this in return for cash, loans, and gifts for himself, his wife, and his children.
McDonnell pleaded not guilty. His trial lasted five weeks in August and September 2014. As McDonnell's counsel, we assiduously pursued our key theory that, other than granting Williams a meeting, McDonnell had not "put his thumb on the scale" as to any decision regarding Williams' interactions with the government. The trial was an emotional affair, complete with constant and unfavorable press coverage; no meaningful voir dire as to potential jurors' knowledge of or reaction to that press coverage; now-public rifts in a 38-year marriage; and family members and staff forced to testify as government witnesses. The jury, misdirected by broad instructions on the topic of "official acts," sided with the prosecution and found McDonnell guilty. Despite the government's request for a decade-long sentence, the district court sentenced him to two years in prison. McDonnell appealed, but the Fourth Circuit unanimously affirmed his convictions.
The rest of the story is well-known. The Supreme Court stayed the Fourth Circuit's mandate, essentially granting McDonnell bail, and granted certiorari to "clarify the meaning of 'official act.'" The Court unanimously adopted the position we had advanced all along, drawing significant boundaries around what sorts of behavior would count as an "official act." Such an act is a "decision or action on a 'question, matter, cause, suit, proceeding or controversy,'" which must in turn involve a formal exercise of governmental power and be something specific and focused that is "pending or may by law be brought" before a public official. 136 S. Ct. 2355 at 2371-72. The Court went on to hold that activities such as setting up a meeting, talking to another official, or organizing an event–without more–do not constitute an "official act." Since the district court had instructed the jury in a way that allowed conviction for these very things, the Court vacated McDonnell's conviction. The government later moved to dismiss his case with prejudice.
Some commentators hastened to decry the Supreme Court's unanimous opinion as "legaliz[ing] public corruption." See Matt Ford, Has the Supreme Court Legalized Public Corruption?, THE ATLANTIC (Oct. 19, 2017). Others took the opposite view, suggesting that new "McDonnell defenses" would have "little impact on judges and still less on juries." See Arlo Devlin-Brown & Erin Monju, Public Corruption Prosecutions and Defenses Post-'McDonnell', N.Y.L.J. (Jan. 30, 2017).
The McDonnell precedent got its first high-profile test when the former Speaker of the New York State Assembly, Sheldon Silver, appealed his 2015 conviction to the Second Circuit.
Silver, in addition to being the highest-ranking legislator in New York, had been a part-time practicing lawyer. Prosecutors argued, and the jury agreed, that Silver accepted bribes and kickbacks–referral fees from third-party law firms–in exchange for performing official acts. These acts included, but were not limited to: (1) securing grant funding for a mesothelioma researcher from a pool of funds that Silver alone controlled; (2) encouraging a state trial judge to hire the researcher's daughter; (3) voting through a proxy, as one of three members of a board, to approve tax-exempt financing for a particular company's real estate ventures; and (4) publicly opposing the relocation of a methadone clinic to a location near one of the same company's properties. 864 F.3d 102, 106-10 (2d Cir. 2017)
The Second Circuit noted that these acts–different in volume and significance from the calls and meetings McDonnell had arranged–were "distaste[ful]." That court found, indeed, that the evidence was sufficient to convict Silver of extortion, fraud, and money laundering. With respect to bribery, however, the problem was that the district court had instructed the jury that an "[o]fficial action includes any action taken or to be taken under color of official authority." Id. at 112. This instruction was at odds with the McDonnell's narrowed definition–erroneous because it "did not convey to the jury that an official action must be a decision or action on a matter involving the formal exercise of government power akin to a lawsuit, hearing, or agency determination." Id. at 118. The Second Circuit vacated Silver's convictions.1
Armed with the teachings of McDonnell and Silver, Senator Robert Menendez, went to trial on corruption charges in October 2017. The government accused Menendez of being a "personal legislator" for a wealthy Florida businessman. In return for lavish vacations, campaign contributions, and other benefits, the government argued that Menendez had assisted the businessman in obtaining visas for his girlfriends and resolving Medicare disputes. At trial, as it had in McDonnell, the government relied upon a "stream of benefits" theory that permitted it to avoid linking particular quids to particular quos and, instead, relied upon "many gifts" and a "variety of political favors" to prove its case. Senator Menendez's defense? The businessman was a dear friend; the benefits were not bribes, they were gifts. In short, there was no "pro" for the "quid" or the "quo."
After nine weeks of testimony, the matter was ready for the jury. The court was the first in the country to craft jury instructions in a public corruption case post-McDonnell. The trial judge concluded that the "stream-of-benefits" theory survived McDonnell (a win for prosecutors) but that the broad instructions as to what constituted an "official act" did not; and the court charged the jury accordingly. However, on November 16, 2017, Senator Menendez's case ended in a mistrial. The jury was deadlocked–10 to 2 in favor of an acquittal. On January 24, 2018, the district acquitted Menendez of 7 of the 17 counts against him and on January 31 the government dismissed the rest of the counts against him with prejudice.
Taking Silver and Menendez together, in conjunction with the Skelos and Jefferson matters, many may ask: Has the Supreme Court raised the bar for public corruption convictions too high? We think not.
Inherent in the misconception that the Supreme Court somehow has "legalized public corruption" is the conflation of an indictment with proven and actual crime. As quaint as the concept may sound, individuals charged with criminal behavior are innocent until proven guilty. Just as importantly, they are entitled to fair notice of what conduct is out of bounds. McDonnell has made it harder to convict where a conviction is not warranted–not impossible to convict where one is.
McDonnell is about guideposts. When given instructions that include the Supreme Court's guidepost language–actual examples of what constitutes an "official act" that do not simply equate to "anything a public official does"–and when confronted with facts that show an official accepted benefits in return for undertaking a true official act, juries can convict within the bounds of the law. When the Second Circuit and the Eastern District of Virginia vacated the convictions of Silver, Skelos, and Jefferson, they said that the guideposts were wrong–not that the convictions were unsupported. The true test of McDonnell will come when the government tries an individual under the proper standard. Until then, we have no progeny; we have imperfect data. We can be certain only that, as litigants grapple with what constitutes an "official act," every public corruption case will be watched carefully.
The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect views or opinions of the law firm with which they are associated.
Henry Absill is Of Counsel in the Washington DC office of the international law firm, Jones Day.
Kristin Zinsmaster is an associate in the Minneapolis office of Jones Day.
- In addition to Silver and Menendez, at least two other high-profile matters were influenced heavily by McDonnell. In September 2017, the Second Circuit vacated the convictions of former New York State Senate Majority Leader, Dean Skelos. It did so in summary fashion, following its own precedent in Silver. 707 F. App’x 733 (2d Cir. 2017). In November 2017, a federal district court threw out the corruption convictions of former Congressman William Jefferson, occasioning Jefferson’s immediate release from prison. 2017 WL 4423258 (E.D. Va. Oct. 4, 2017).