The following excerpts are taken from an article written by Randy Singer and Rosalyn Singer for publication in the Fall 2016 edition of the Journal of Local Government Law. The full-length article is available through the Virginia State Bar.
The conviction of former Governor Robert McDonnell and his wife on September 24, 2014, for alleged honest services fraud and Hobbs Act extortion, sent shock waves through the ranks of Virginia state and local officials. From the outset, the Government conceded that Governor McDonnell and his wife had not violated state laws but nevertheless claimed they had violated federal corruption statutes by performing official acts in exchange for various loans and gifts from Virginia businessman, Jonnie Williams.
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The Court looked at two main issues. The first was whether the district court properly instructed the jury about what constituted “official action.” McDonnell, 136 S. Ct. at 2367. At the Government’s request, for example, the trial court told the jury that official action “encompasses ‘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.’” Id. at 2366. . . . The second issue was a sufficiency challenge. Defense counsel argued both that the five acts specified in the indictment could not constitute “official acts” as a matter of law and that, even if they could, the evidence at trial did not support any attempt to influence an official decision or action. Id. at 2375.
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In light of the virtually limitless reach of the “quid” and the guilt-by-implication possibilities for the “quo” element of the equation, as discussed above, the Court recognized the need to limit the “quo” so that public officials would not “be subject to prosecution, without fair notice, for the most prosaic interactions.” McDonnell, 136 S. Ct. at 2373. By its limitations on the reach of official action, the Court’s “more constrained interpretation” was designed to avoid a “vagueness shoal.” Id. . . . But even as the Court provided its limitations on the definition of official action, it still left a lot of gray on the margins. For example, public officials need not actually carry out the acts; it is enough if the official agrees to do them at some point in the future. Moreover, the official does not have to perform the official action himself, it is enough if he pressures someone else to do so. And all of this can be proven by circumstantial and indirect evidence, like any other conspiracy.
So, while the McDonnell opinion placed important restrictions on the Government’s unbounded definition of “official action,” it still left some areas of federal corruption law murky. Anyone who accepts a campaign contribution, enjoys a fine glass of wine at a constituent’s expense, or relaxes on a trout fishing trip should take note.