I attended the McDonnell hearings this morning at the 4th Circuit Court of Appeals in Richmond. As expected, it was a packed courtroom consisting almost entirely of the press (including The Bull Elephant’s representative, me) and an incredibly large number of attorneys who worked on the case.[read_more] (You could tell the difference between the members of the press and the attorneys by what type of clothes they were wearing.) Bob McDonnell was in attendance.
Presiding over the proceedings was Judge Diana Gribbon Motz (Clinton appointee). The other judges were Judge Robert B. King (Clinton appointee) and Judge Stephanie D. Thacker (Obama appointee).
Neal J. Francisco appeared for Governor McDonnell and Richard D. Cooke appeared on behalf of the Department of Justice.
By way of background, on September 4, 2014, Gov. Bob McDonnell was convicted of violating the Federal honest-services fraud statute (18 U.S.C. § 1346) and the Hobbs Act (18 U.S.C. § 1951(b)(2)) which prohibit government officials from engaging in “official acts” in exchange for bribes. Everyone knows that Star Scientific’s Jonnie Williams gave the Governor and his wife gifts. The legal question is did Bob McDonnell engage in “official acts” in exchange for these gifts?
The Federal government alleged the following events were “official acts”:
- In August 2011, Maureen McDonnell organized a luncheon at the Executive Mansion where one of Star Scientific’s products, Anatabloc, was at every table setting. The Governor appeared briefly to say a few words.
- Governor McDonnell asked a subordinate to send a staffer to a meeting with Williams, immediately after which the staffer sent Williams a “blow-off email.” (I wish more people had done this.) Nothing else happened.
- Governor McDonnell suggested to two subordinates that they meet with a representative of Star Scientific. The subordinates disagreed about whether Governor McDonnell made the suggestion, they never met with anyone, and they never heard about it again.
- Governor McDonnell’s wife invited Williams, and private doctors recommended by Williams, to a reception for “Healthcare Leaders” and at which Anatabloc was not promoted or otherwise featured. Nothing else happened.
- Governor McDonnell sent an email to his chief counsel asking the counsel to “see me about Anatabloc issues at VCU and UVA.” The counsel did not recall actually seeing him and nothing else happened.
An “official act” under the Federal bribery statute is defined as: “[A]ny 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.”18 U.S.C. § 201(a)(3), (b)(2)(A).
Governor McDonnell’s appeals brief sets forth the correct (in my opinion) standard for what constitutes an “official act”:
“The statutory definition in § 201(a)(3) requires that a government official promise to exercise, or induce others to exercise, actual governmental power. That is, the official must make a decision or commitment on the sovereign’s behalf on a specific matter—such as by obtaining a visa, awarding funding, or signing a bill—or induce someone else to.”
McDonnell brief, p. 27.
“The Government’s case against former Virginia Governor Robert F. McDonnell is built on a boundless definition of bribery that the Supreme Court has rejected, that the statutory text precludes, and that contravenes the decisions of every court to consider it. This definition would, if adopted here, make virtually every elected official in the Fourth Circuit a criminal.”
McDonnell brief, p. 16.
The actual jury instruction, proposed by the DOJ, and adopted by trial court Judge James R. Spencer (Reagan appointee) without change, was that “official actions may include acts that a public official customarily performs, even if those actions are not described in any law, rule, or job description.”
Neal Francisco opened by arguing that the DOJ’s definition of “official act” (as set forth in the jury instruction) could encompass something as innocuous as a photo op. Amazingly enough, DOJ counsel Cooke didn’t appear to disagree with this assertion during his argument. Francisco pointed out there is a significant difference between access to a public official and advocacy for a specific decision. He noted that Judge Spencer refused to give an instruction concerning a “good will gift” to wit: “a good will gift to an official to foster a favorable business climate, given simply with the generalized hope or expectation of ultimate benefit on the part of the donor, does not constitute a bribe.” United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998).
The only instruction Judge Spencer was willing to give regarding limiting the jury’s power to convict was the so-called “good faith” instruction, namely that if the receipt of the gifts was done in good faith that it was not illegal to do so the jury could return a not guilty verdict.
A major thrust of Neal Francisco’s argument was that, at the very least, Judge Spencer should have also limited the broad definition of “official act” by providing instruction as to what did not constitute an “official act.” This argument appeared to find some sympathy with Judge Motz.
Judge King seemed particularly hostile to Francisco’s arguments stating that he believed that Governor McDonnell’s proposed jury instructions were legally erroneous, that the Governor may have waived his right to object to jury instructions because the instructions were not objected to before they were read to the jury (even though the attorneys for Governor McDonnell had objected to the instructions three times previously) and stating that the “good faith” instruction was a sufficient limiting instruction that was extremely beneficial to the Governor. Judge King also noted that jury instructions are subject to an “abuse of discretion” standard pursuant to which Judge Spencer has considerable discretion in choosing the specific wording of his instructions.
Judge Motz seemed to agree with Judge King that Governor McDonnell’s proposed instructions were legally erroneous but she appeared to back off that statement during the rebuttal by Neal Francisco. She also noted that, as far as quid pro quo was concerned, there was a lot of quid but not so much quo.
Judge Thacker seemed the most sympathetic to Governor McDonnell’s case.
Richard Cooke essentially repeated the DOJ’s legal arguments set forth above and repeated the factual circumstances of the alleged “official acts” of Governor McDonnell. He wasn’t interrupted as many times as Neal Francisco was.
The only other issue argued today, and it took up only about 5% of the allotted time, was Governor McDonnell’s argument that Judge Spencer should have allowed prospective jurors to be asked if they had formed an opinion as to the guilt or innocence of Governor McDonnell based upon pre-trial publicity. This question was actually jointly agreed to by Governor McDonnell and the DOJ and Judge Spencer struck it without explanation.
In conclusion, things didn’t go as well for Governor McDonnell today as I would have liked to see. Judge King was hostile, Judge Thacker seemed sympathetic, and Judge Motz seemed at best leaning against Governor McDonnell. However, you can go broke betting on how Judges will actually decide a case after oral argument.
I think the government clearly overstepped its bounds here in an overly broad definition of “official acts” and if this decision is allowed to stand any number of innocuous acts committed by public officials could potentially now be criminal acts. In my opinion, it is also unfair to put a person in jail unless an average citizen can determine what conduct is prohibited. I express no sympathy for Governor McDonnell’s behavior. He should have never accepted any gifts of any kind from Jonnie Williams. However, he should not have been convicted of any crime.
Governor McDonnell outside the courtroom today: