AuthorParker, Terence A.


At first glance, the final day of October Term 2015 was a major blow to the fight against public corruption. "The Bob McDonnell Supreme Court ruling makes convicting politicians of corruption almost impossible," read a headline in the Washington Post. (1) The New York Times, anticipating downstream effects of the decision in McDonnell v. United States, (2) wrote: "Supreme Court Complicates Corruption Cases From New York to Illinois." (3) The Wall Street Journal, noting the potential impact on pending high-profile corruption cases, wrote that the decision "could make it harder for prosecutors to bring cases against public officials." (4) These newspaper articles are only a tiny sample of the coverage dedicated to the Supreme Court's reversal of former Virginia Governor Bob McDonnell's corruption convictions. (5) Yet these articles illustrate a widespread concern that the McDonnell decision would make securing bribery convictions significantly more difficult. (6)

In McDonnell, the Supreme Court addressed as a matter of statutory interpretation what actions constitute an "official act"--a necessary element for proving honest services wire fraud and Hobbs Act extortion. (7) In answering this question, the Court held that taking meetings, making phone calls, and hosting events, by themselves, could not satisfy the statute's official act requirement. (8) The question now, with more than two years of hindsight, is whether these fears were well founded. Has McDonnell, as so many feared, made it nearly impossible for prosecutors to bring public corruption cases? The answer from the lower courts, at both the circuit and district levels, appears to be that McDonnell has had a limited impact.

This Note analyzes a series of federal corruption cases brought around the time of the McDonnell decision, to discern patterns in how lower courts have interpreted McDonnell, and how federal prosecutors have altered their strategies in its aftermath. In particular, this Note focuses on three high-profile public corruption cases. (9) Two of these cases involve convictions that occurred immediately preceding the McDonnell decision, and whose subsequent appeals relied heavily on the Court's holding in McDonnell. (10) The third case, the prosecution of U.S. Senator Robert Menendez from New Jersey, involves a trial that occurred wholly after the McDonnell decision. (11) Though these are not the only lower court cases to analyze McDonnell, they are representative of the high-profile corruption cases that commentators feared would be impossible in the aftermath of the decision.

These cases represent the lower courts' first attempts to apply McDonnell. The McDonnell doctrine will continue to develop with time, however the narrow official act definition has not had the dramatic effect the commentators suggested. This Note makes three arguments derived from post-McDonnell caselaw. The first is that the Court's definition of official act will only make a difference in a narrow subset of public corruption cases, leaving prosecutions in most others relatively unchanged by the decision. (12) Second, the Court's holding in McDonnell did not, as some have argued, foreclose prosecutions under a "stream of benefits" (13) theory of corruption. (14) Third, and finally, the chief barrier that prosecutors encounter is unchanged by McDonnell's holding--that is, proving corrupt intent. (15)

This Note proceeds in five Parts. Part I provides a background discussion of the facts and holding in McDonnell. Part II goes on to analyze McDonnell through the lens of three recent federal public corruption cases, discussing how the decision has been applied to both specific act and stream of benefits prosecutions. Part III argues that the narrower official acts definition announced by the McDonnell Court will not result in a sea change to corruption prosecutions. Part IV argues for the resilience of the stream of benefits theory of public corruption in the aftermath of McDonnell. Finally, Part V argues that proving corrupt intent is still the primary obstacle to federal prosecutors, not a shift in the law caused by McDonnell.


    On January 21, 2014, federal prosecutors in the Eastern District of Virginia announced a fourteen-count indictment against former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell. (16) The first eleven counts of the indictment alleged that McDonnell "committed and conspired to commit honest-services wire fraud and extortion under color of official right." (17) The indictment represented one of the Department of Justice's most ambitious attempts to prosecute a public official for corruption in decades. (18) Up until the investigation that culminated in the indictment, McDonnell was seen as a rising star in the Republican Party. (19)

    The charges stemmed from the former Governor's relationship with Virginia businessman Jonnie Williams, who was the chief executive officer of Star Scientific, a Virginia-based nutrition company. (20) While in office, Governor McDonnell accepted "$175,000 in loans, gifts, and other benefits" from Williams. (21) Among the loans and gifts that federal prosecutors alleged represented bribes included a $20,000 shopping spree paid for by Williams for Mrs. McDonnell; a $50,000 loan to cover the McDonnells' real estate debts; a $15,000 payment for wedding expenses for the McDonnells' daughter; a $2380.24 golf outing that Williams did not even attend; and a $6000-$7000 Rolex watch for Governor McDonnell. (22) Far from being an exercise in generosity, prosecutors "sought to prove that [McDonnell] and his wife... accepted [the] money and lavish gifts in exchange for efforts to assist [Star Scientific] in securing state university testing of a dietary supplement the company had developed." (23)

    At trial, the Government's underlying theory for "both the honest services fraud and Hobbs Act extortion charges was that Governor McDonnell had accepted bribes from Williams." (24) From the outset, the parties agreed that the federal bribery statute, 18 U.S.C. [section] 201, would govern the definition of honest services fraud and Hobbs Act extortion. (25) Thus, for both charges prosecutors would be required to prove that Governor McDonnell took an official act within the definition of the federal bribery statute. (26) To satisfy this requirement, prosecutors "alleged that Governor McDonnell committed at least five 'official acts'" in exchange for bribes from Williams. (27) Over the course of the five-week jury trial, the evidence of these five alleged official acts primarily involved McDonnell's actions setting up meetings between Star Scientific and state officials. (28) Defense counsel argued that setting up meetings with state officials or university researchers was the normal course of business in the Governor's office, and that McDonnell did not expect "his staff 'to do anything other than to meet' with Williams." (29) In essence, McDonnell's defense was that these actions were exactly the kind of constituent services expected of public officials.

    After closing arguments, the district court instructed the jury that they must find whether McDonnell "agreed 'to accept a thing of value in exchange for official action.'" (30) The court then reiterated the five specific official acts alleged in the indictment, and read the 18 U.S.C. [section] 201 definition of official act to the jury. (31) Additionally, the court read the Government's requested instruction to the jury: "[T]he term encompassed 'acts that a public official customarily performs,' including acts 'in furtherance of longer-term goals' or 'in a series of steps to exercise influence or achieve an end.'" (32) The court rejected McDonnell's proposed instruction that "merely arranging a meeting, attending an event, hosting a reception, or making a speech" were insufficient to constitute an official act under [section] 201. (33)

    The jury convicted McDonnell on both the honest services fraud and Hobbs Act extortion charges. (34) McDonnell appealed to the Fourth Circuit on the grounds (1) that the district court's definition of official acts was overly broad, (2) that the statutes of conviction were unconstitutionally vague, and (3) that the evidence against him was insufficient to sustain a conviction. (35) The court of appeals rejected McDonnell's arguments, and upheld the district court's jury instructions. (36)

    The Supreme Court granted a writ of certiorari to clarify the meaning of official act, and reversed the Fourth Circuit. (37) Writing for a unanimous Court, Chief Justice Roberts rejected the sweeping language used in the official act jury instruction. (38) The Court's narrow interpretation of [section] 201 (a) (3) created two requirements for proving an official act. First, the Government "must identify a question, matter, cause, suit, proceeding or controversy involving the formal exercise of governmental power." (39) Second, "the public official must make a decision or take an action on that 'question, matter, cause, suit, proceeding or controversy,' or agree to do so." (40) The second prong can be satisfied if the official (1) makes a "decision or action on a qualifying step" toward an official action, (41) (2) uses his position to "exert pressure" on another official to take an official act, (42) or (3) advises another official, "knowing or intending that such advice will form the basis for an 'official act' by [that] official." (43)

    The decision to narrow the definition of official act rested primarily on the Court's interpretation of the text of the federal bribery statute. (44) Chief Justice Roberts coupled the statutory interpretation with a discussion of the Court's decision in United States v. Sun-Diamond Growers of California. (45) That case compelled the conclusion that "something more" is required before "hosting an event, meeting with other officials, or speaking with interested...

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