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How Broad is Bribery?

Former Virginia Governor Bob McDonnell has put forward his best case that a lower court has adopted an overly broad definition of “official acts” in federal bribery statutes. Will the Supreme Court agree? 

While in office former McDonnell accepted more than $175,000 in money and luxury goods from Jonnie Williams. Williams wanted a Virginia state university to test a dietary supplement his company, Star, had developed.  A jury found McDonnell guilty of violating a number of federal bribery statutes.

In McDonnell v. United States McDonnell essentially claims he did not do enough to help Williams to be guilty of bribery. From his brief: “[t]his case marks the first time in our history that a public official has been convicted of corruption despite never agreeing to put a thumb on the scales of any government decision.”

To violate the federal bribery statutes at issue in this case, a government must agree to take “official action” in exchange for something of value. McDonnell argues that “official action” is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power.  And he argues that if these statutes aren’t so limited they are unconstitutional. 

More specifically, he argues the “provision of mere ‘access’ or conferral of amorphous reputational benefits”—which is all he did—isn’t “official action.” And if it is, “every elected official and campaign contributor [will be] a target for investigation and indictment.”

McDonnell claims he was accused of engaging in five “official acts” on behalf of Williams: asking his Secretary of Health to send an aide to meet Mrs. McDonnell and Williams about clinical trials at two Virginia universities, attending a lunch at the Executive Mansion arranged by Mrs. McDonnell where Star gave $200,000 to Virginia universities to prepare research proposals, sending his legal counsel an email to “see him” about the universities not returning Star’s phone calls, introducing one of Williams’ associates, a prominent doctor, at a “Healthcare Leaders” reception at the Executive Mansion organized by Mrs. McDonnell, and during a meeting about Virginia’s state-employee health plan he consumed one of the supplements and noted that it had been working well for him (implying that it should be covered by the health plan).

McDonnell disputes that any of these activities were “official acts.” “At most, Governor McDonnell provided Williams with access to other officials so Williams could plead his case; the undisputed evidence shows that Governor McDonnell never pressured any official to make any governmental decision to benefit Williams—which is why no such decisions were ever made.”

The Fourth Circuit affirmed a jury verdict for bribery against McDonnell. “The evidence at trial made clear that Star executives wanted [McDonnell] to use his prominence and influence to the company’s advantage. To the extent, then, that [McDonnell] made any ‘decision’ or took any ‘action’ on these matters, the federal bribery laws would hold that decision or action to be ‘official.’”

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