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.

. . .

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.

. . .

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.


Original article available online through The Virginian-Pilot.

Federal prosecutors will not attempt to retry former Gov. Bob McDonnell and his wife, Maureen McDonnell, on corruption charges, the U.S. Attorney’s Office said Thursday.

Other than formal court action, the announcement brings the McDonnell legal epic to an end.

Bob McDonnell’s sister, whose name also is Maureen McDonnell, said by phone Thursday that the family wanted to thank the many supporters who helped them get through the case, and is grateful it’s over.

“We just found out. … It was just – we were really ecstatic about the dismissal,” she said. “It’s been a long 3½-year ordeal for our family. We never lost hope that Bob would be vindicated.”

In a statement released by his New York public relations company, Bob McDonnell said, in part: “I have become grateful for this experience of suffering, having used it to examine deeply all aspects of my life, and my role in the circumstances that led to this painful time for my beloved family and Commonwealth. I am thankful to God for teaching me new lessons about His grace, mercy, and providence.”

Bill Burck, a lawyer for his wife Maureen McDonnell, said in an email statement: “We thank the Department of Justice for the care with which they reviewed the case. We are thrilled and thankful that Maureen can now move on with her life.”

A jury convicted the McDonnells in 2014 of multiple counts of corruption, and Bob McDonnell appealed to the U.S. Supreme Court, where he won. The case was sent back to an appellate court for a decision on whether McDonnell could be retried following the Supreme Court’s ruling in June that jurors were not properly instructed on federal bribery law and may have convicted him in error.

Federal prosecutors asked for an extension of their Aug. 29 deadline to decide whether to retry McDonnell. According to a Washington Post report, they recommended to the Department of Justice in Washington that he be retried.

The news is a huge victory for the McDonnells, whose indictments and convictions led to changes in state law related to gifts. They were found guilty of taking official action for businessman Jonnie Williams, who was seeking state support for a dietary supplement.

U.S. Attorney Dana Boente for Virginia’s Eastern District issued a three-sentence news release that said:

“Today the United States moved to dismiss the charges against Robert F. McDonnell and his wife Maureen McDonnell.

“After carefully considering the Supreme Court’s recent decision and the principles of federal prosecution, we have made the decision not to pursue the case further.

“The department thanks the trial team and its investigative partners for their outstanding work on this case.”

Bob McDonnell has insisted that while he made mistakes when he and his wife accepted more than $170,000 in swanky gifts and off-the-books loans from Williams, he took no official action in return and did not break the law.

He took the stand in his own defense during his approximately five-week trial in Richmond in 2014, as his attorneys presented evidence that his relationship with his wife was on the verge of collapse. Legal experts later criticized that defense strategy.

A judge sentenced McDonnell to two years in prison and his wife to a year and a day. They remained free on appeal.

McDonnell, a former prosecutor and lawmaker in Virginia Beach who served as state attorney general before his election as governor in 2009, was previously considered as someone whose GOP political career would extend beyond his four-year term. But the January 2014 indictment and prosecution cut that short and replaced it with images of McDonnell wearing a Rolex watch provided by Williams and driving Williams’ Ferrari.

Williams was granted immunity in exchange for his testimony against the McDonnells.

McDonnell bolstered his appellate filings with briefs of support from political and business leaders, including former state and federal attorneys general who argued he had committed no crime and that federal bribery law was too broad.

Democratic Gov. Terry McAuliffe, who succeeded McDonnell, said in June that McDonnell should not be retried.

Jeff McWaters, a friend of McDonnell’s in Virginia Beach and a former state lawmaker, said he would have been shocked if the Justice Department had moved forward with a new trial.

“Everybody is just very, very, very pleased,” he said. The McDonnells “have been vindicated completely by the United States Supreme Court.”

McWaters also said the federal justice system – with prosecutors who leak information and are “willing to ruin people’s lives” – needs analysis.

Randy Singer, another lawyer for Maureen McDonnell, said in an email that she is “serving with some non-profits, re-planting her roots in the Hampton Roads community, and cherishing her time with her family, including her four grandchildren. She will be forever grateful for this day, a day that marks a fresh start for both Governor and Mrs. McDonnell, and a day where they can shift their focus from the legal battle that has consumed them to giving back to the Commonwealth that has meant so much to them.”

Bob McDonnell has started a consulting business with his sister.