LOCATION: Executive Mansion
DOCKET NO.: 15-474
DECIDED BY: Roberts Court (2016- )
LOWER COURT: United States Court of Appeals for the Fourth Circuit
CITATION: 579 US (2016)
GRANTED: Jan 15, 2016
ARGUED: Apr 27, 2016
DECIDED: Jun 27, 2016
Michael R. Dreeben – Deputy Solicitor General, for the respondents
Noel J. Francisco – for the petitioners
Facts of the case
On November 3, 2009, Robert F. McDonnell was elected Governor of Virginia. At the time of his election, he and his family were experiencing economic difficulties; by September 2010, he and his wife had a combined credit card balance of $90,000, and by 2012 the business he and his sister operated had a loan balance of $2.5 million. Shortly after his election, McDonnell met with Jonnie Williams, the founder and CEO of Star Scientific, Inc. (Star), which was trying to market a product called Anatabloc that could be used to treat chronic inflammation. Star wanted the Food and Drug Administration to classify Anatabloc as a pharmaceutical, which would be more profitable than the alternative classification of nutraceutical. However, such a classification would require expensive testing, clinical trials and studies, and Star lacked the funds. Between 2009 and 2012, Williams and McDonnell met several times and agreed that “independent testing [of Anatabloc] in Virginia was a good idea.” Williams also provided expensive gifts to the McDonnells and “was willing to help” with their financial troubles. A launch event for Anatabloc was held at the Governor’s Mansion, and Mrs. McDonnell facilitated meetings between Star officials and officials at the University of Virginia and Virginia Commonwealth University to get the studies started. Mrs. McDonnell also purchased, sold, and gifted Star stock in such as way as to avoid reporting requirements, and McDonnell spoke to various government officials about the benefits of Anatabloc.
The McDonnells were eventually arrested and charged for corruption, under federal statutes that make it a felony to take “official action” in exchange for money, campaign contributions, or any other thing of value. On September 4, 2014, McDonnell was found guilty on 11 counts of corruption. McDonnell appealed his conviction and argued that the jury instructions given at trial did not properly define the term “official action.” The U.S. Court of Appeals for the Fourth Circuit affirmed his conviction and held that the jury instructions in question were adequate.
For the purpose of federal bribery statutes, is an “official action” limited to the exercise or threatened exercise of actual governmental power, and if the term is not limited in this manner, are the statutes unconstitutional?
Media for McDonnell v. United States
Audio Transcription for Opinion Announcement – June 27, 2016 in McDonnell v. United States
John G. Roberts, Jr.:
I have the opinion of the Court in McDonnell versus United States, case number 15-474.
In 2014, the federal government indicted former Virginia Governor Robert McDonnell and his wife Maureen McDonnell on bribery charges.
The charges concerned their acceptance of $175,000 in loans and gifts from Virginia businessman Johnny Williams while Governor McDonnell was in office.
At the time Williams was the CEO of Star Scientific, a Virginia-based company that had developed Anatabloc, a nutritional supplement made from a compound found in tobacco.
Star Scientific hoped that Virginia’s public universities would perform research studies on Anatabloc, and Williams wanted Governor McDonnell’s assistance in obtaining those studies.
Now to convict the McDonnells of bribery the government was required to show that Governor McDonnell committed or agreed to commit an official act, that’s the critical term in the statute in exchange for the loans and gifts.
An official act is defined in the law as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official.”
The government charged that Governor McDonnell committed at least five official acts in exchange for the loans and gifts including arranging meetings for Williams with other Virginia officials to discuss Star Scientific’s product, hosting events for Star Scientific at the Governor’s mansion, and contacting other government officials concerning the research studies.
At the close of trial, however, Governor McDonnell asked the district court to instruct the jury that merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, ‘official acts’.
The district court declined to give that instruction and the jury convicted Governor and Mrs. McDonnell on the bribery charges.
Governor McDonnell was sentenced to two years in prison.
Now he sought to overturn his convictions on the ground that the jury instructions were erroneous.
The evidence against him was insufficient and the bribery statutes under which he was convicted were unconstitutional.
The district court rejected those claims and the Fourth Circuit affirmed on appeal.
We granted certiorari.
Now there is no doubt that the facts of this case are tawdry.
In addition to loaning the McDonnells over $100,000 Williams paid for expensive vacations for the McDonnell family and let the governor borrow his Ferrari.
Williams also bought Mrs. McDonnell $20,000 worth of designer clothing, in addition to purchasing a Rolex watch that she later gave to the Governor as a Christmas present.
This case, however, is not about the propriety of those loans and gifts.
It is instead about whether Governor McDonnell performed or agreed to perform an official act as defined under the statute and our cases in exchange for those loans and gifts.
In particular, the question presented is whether arranging a meeting, contacting another official or hosting an event without more qualifies as an official act?
Now the federal bribery statute sets forth two requirements for an official act; first, the government 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.
And second, the government must prove that the public official made a decision or took an action on that question or matter, or agreed to do so.
Now as for the first requirement, there are at least three questions or matters at issue in this case; one, whether researchers at Virginia’s state universities would initiate a study of Anatabloc; two, whether Virginia’s Tobacco Commission would allocate grant money for studying Anatabloc and three, whether Virginia’s Health Plan for State employees would cover Anatabloc.
But what counts is a decision or action on those questions or matters?
Is setting up a meeting, hosting an event or calling another official, without more, enough?
Now, although the word decision and especially the word action could be read expansively to support the government’s view that these things are covered by the law, our opinion in a case from 1999 known as United States versus Sun-Diamond Growers of California rejects such a broad interpretation.
In Sun-Diamond, the Court, in an unanimous opinion, authored by our late colleague Justice Scalia, stated that it was not an official act for the President to host the championship sports team at the White House, the Secretary of Education to visit a high school or the Secretary of Agriculture to deliver a speech to farmers about USDA policy.
We recognize that the Secretary of Agriculture always has before him matters that affect farmers, just as the President always has before him matters that affect college and professional sports, and the Secretary of Education matters that affect high schools.
But we concluded that the existence of such pending matters did not mean that any action related to them was an official act.
John G. Roberts, Jr.:
It was possible to avoid what the Court called the absurdity of convicting individuals on corruption charges for engaging in such conduct by adopting a more limited definition of official act and that is what we do.
Hosting an event, meeting with other officials, or speaking with interested parties is not standing alone an official decision or action.
More is required.
A public official must make a decision or take an action on the personal question or matter or agree to do so.
Consider the question of whether to initiate a research study, a decision to do so or not to do so is a decision or action on that question and qualifies as an official act.
So too would pressurizing another official to take such action.
Arranging a meeting to discuss the question, participating in a call to receive or convey information on the question or holding an event to bring interested individuals together on the other hand is not under the statute and/or cases an official decision or action on the specific pending question of whether to initiate the study.
As the Sun-Diamond case makes clear not every activity related to a question like a telephone call about it counts as an official decision or action.
Otherwise that express statutory limit would be meaningless.
And this is an area where limits are important.
Conscientious public officials arrange meetings for their constituents, contact other officials on their behalf and include them in events all the time.
The whole notion of representative government assumes that public officials will hear from their constituents and act appropriately on their concerns, whether it is the Union officials worried about a plant closing, or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm.
The government’s position in this case could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution to the official in the past or the homeowners invited the official to join them on their annual outing to the ball game.
Officials might wonder whether they could respond to even the most commonplace requests for assistance and citizens with legitimate concerns might shrink from participating in the democratic process.
Now this concern is substantial.
White House counsel who worked in every administration from that of President Reagan to President Obama warned us in an amicus brief that the government’s “breathtaking expansion of public-corruption law would likely chill federal officials’ interactions with the people they serve and thus damage their ability effectively to perform their duties.”
Six former Virginia Attorneys General, four Democrats and two Republicans, also filed an amicus brief in this Court echoing those concerns as did 77 former state attorneys general from states other than Virginia, 41 Democrats, 35 Republicans and one independent.
Now none of this of course, is to suggest that the facts of this case typify normal political interaction between public officials and their constituents, far from it, but the government’s legal interpretation is not confined to cases involving extravagant gifts or large sums of money and we cannot construe a criminal prohibition in reliance on the assumption that the government will always use it responsibly.
Given our more limited reading of official act, we conclude that the jury instructions in Governor McDonnell’s case were erroneous.
Those instructions did not adequately explain how to identify the question or matter at issue, or make clear that the jury must find that Governor McDonnell made a decision or took an action or agreed to do so on that question or matter.
At trial several of Governor McDonnell’s subordinates testified that he asked them to attend a meeting, not that he expected them to do anything beyond that.
Now if that testimony reflects what Governor McDonnell agreed to do at the time he accepted the loans and gifts from Williams, then he did not agree to make a decision or take an action on any of the three questions or matters we have identified.
Because the jury was not correctly instructed we must vacate Governor McDonnell’s convictions.
We reject, however, Governor McDonnell’s argument that the bribery statutes under which he was convicted are unconstitutionally vague.
As for his argument that there is insufficient evidence that he committed an official act we leave that for the Court of Appeals to resolve in the first instance.
There is no doubt that this case is distasteful.
It may be worse than that, but our concern is not with tales of Ferraris, Rolexes and designer clothing.
It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute.
Our more circumscribed interpretation of the term official act leaves ample room for prosecuting corruption while at the same time comporting with the text of the statute and the precedent of this Court.
The judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion.
John G. Roberts, Jr.:
The opinion of the Court was unanimous.