Supreme Court overturns Robert McDonnell’s conviction

In its final decision of the term, the Supreme Court today unanimously overturned the public corruption conviction of former Virginia governor Robert McDonnell. The court stated that it has no opinion as to whether McDonnell should be retried under the stricter standard (described below) it imposed for these kinds of cases.

I have mixed feelings about the outcome, but I agree with the decision.

You don’t have to be the son of a government worker who wouldn’t take a bag of fruit from a grower whose orchard he inspected, as I am, to lack sympathy for a governor who received Rolexes, funding for his daughter’s wedding, and more from someone who wanted his assistance in marketing what Professor Rick Hasen calls the equivalent of snake oil.

I agree with Chief Justice Roberts who, in his opinion for the Court, described McDonnell’s case as “tawdry.” And I understand the frustration of our friends at Judicial Watch who denounced the decision as follows:

The decision by the Supreme Court to vacate former Virginia governor Robert McDonnell’s graft conviction further weakens the ability of the American people to fight back against burgeoning public corruption.
Even before today’s unfortunate decision by the High Court, federal prosecutions for public corruption had reached a 20-year low. Data from the Justice Department show that 505 individuals were prosecuted for corruption offenses during FY 2015, a decline of 3.6 percent from FY 2014 and down more than 30 percent from five years ago.

It is no surprise that criminal politicians don’t like federal corruption laws, but that doesn’t make those laws unconstitutional. Eviscerating anti-corruption laws is the last thing this nation needs – as public corruption is already out of control.

However, as I argued here, charges like those brought against McDonnell present the real danger of criminalizing ordinary politics.

This was precisely the concern the Chief Justice expressed in his opinion. He noted that “conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time.” The government’s position, he warned, “could cast a pall of potential prosecution over these relationships” if, for example, a union or group made some show of gratitude.

Roberts stressed that the facts of McDonnell’s case do not typify normal political interaction between public officials and their constituents. The problem, though, is that “the government’s legal interpretation is not confined to cases involving extravagant gifts or large sums of money, and we cannot construe a criminal statute on the assumption that the government will ‘use it responsibly.’”


Accordingly, the Court articulated a standard that the government must meet in cases like McDonnell’s. First, it must identify a “question, matter, cause, suit, proceeding or controversy” that “may at any time be pending” or “may by law be brought” before a public official. Second, it must prove that the public official made a decision or took an action on that question, matter, cause, suit, proceeding, or controversy, or agreed to do so.

“Arranging a meeting, contacting another official, or hosting an event — without more” does not satisfy this standard. But that was all the trial judge required the government to show in McDonnell’s case. As Prof. Hasen says, the government merely had to prove that the Governor contacted state officials and asked them to have a meeting with the donor. It did not have to prove that the Governor sought to influence anyone’s decision on anything.

Prof. Hasen sees the influence of Justice Scalia in this decision:

In an earlier case, Sun-Diamond, Justice Scalia wrote a majority opinion (involving the conviction of Agriculture Secretary Mike Espy on illegal gratuity charges) in which Justice Scalia warned about the criminalization of ordinary politics. This unaninimous opinion by Chief Justice Roberts follows that same lead. . . .

Justice Scalia’s influence was also felt in the mode of analysis. Tellingly, Chief Justice Roberts begins with a textual analysis of the statute, and the canon of construction known as noscitur a socciis.

He uses the textual tools to define what counts as an official act, and reads that statute in a way that avoids vagueness and makes sense. At least in the ordinary run of cases, Justices today follow Scalia’s lead and start with a textual analysis. It is not always the end of the analysis, but it is always the beginning. And in a case like this, presenting issues of possible overreach, the textual analysis lined up with the pragmatic analysis.

A good way to end a rather disappointing Supreme Court term.