McDonnell: SCOTUS defines ‘official acts’

AP Photo
AP Photo

By now, you’ve no doubt heard that the U.S. Supreme Court vacated the corruption convictions of former Virginia Governor Bob McDonnell. (The decision is here.) Perhaps the most important thing from the decision is the definition of “official acts:”

An “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” That question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that question or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of “official act.”

The Court concluded:

Because the jury was not correctly instructed on the meaning of “official act,” it may have convicted Governor McDonnell for conduct that is not unlawful. For that reason, we cannot conclude that the the errors in the jury instructions were “harmless beyond a reasonable doubt.”

More than two years ago, I opined that the corruption charges against McDonnell be dropped, because his behavior did not rise to the level of an “official act.” The Court did not rely on the cases I cited but essentially came to the same conclusion.

The decision to re-try McDonnell will be made in the coming months. Given this definition, I will be surprised if it happens.

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In related news, the trial of Norfolk Treasurer Anthony Burfoot should be able to proceed now. SCOTUS, in fact, rejected McDonnell’s claim that the honest services statute and the Hobbs Act were “unconstitutionally vague.”

For purposes of this case, the parties defined honest services fraud and Hobbs Act extortion with reference to §201 of the federal bribery statute. Because we have interpreted the term “official act” in §201(a)(3) in a way that avoids the vagueness concerns raised by Governor McDonnell, we decline to invalidate those statutes under the facts here.

This appears to be the same argument that Burfoot’s attorneys were making. The definition of “official act” is now clear and the trial should proceed as soon as possible.

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