And still . . . there is an appeal. As serious as McDonnell’s predicament is, there is widespread agreement he has ample grounds for appeal. The Richmond Times-Dispatch reports:
“Overall, it’s obviously a victory for the government and a victory for the government’s theory that selling the prestige of the office amounts to an ‘honest services fraud,’ ” said Andrew McBride, a former assistant U.S. attorney for the Eastern District of Virginia, now a partner at the Wiley Rein law firm.
“(But) I think there will be a substantial and important legal appeal on the issue of what constitutes an official act, and what kind of breach of fiduciary duty is necessary to establish ‘honest services’ fraud,” McBride added. “These are issues that the Supreme Court has explored, and the Supreme Court has generally been very hostile to a broad reading of the honest services statute.”
McBride noted that the high court rejected the theory of honest services fraud in 1987 but then Congress re-established it by statue in 1988. However, the Supreme Court in 2010 interpreted that statute “fairly narrowly” in a case involving former Enron CEO Jeffrey Skilling, saying it covered only bribery or extortion schemes, McBride said.
Indeed, part of the shock is attributable to the innocuous nature of the favors McDonnell provided. The reaction of many lawyers and political insiders is best summed up as “That can get you convicted?!” Well, that is the question of the day and the subject of an appeal. (“I think it’s fair to say that the government stretched the statute a little bit for this case, and Judge Spencer gave them very favorable instructions that really in some ways — in my view — almost guaranteed conviction on the wire fraud count,” McBride is quoted as saying.)
Realization that the conviction may serve to criminalize a whole range of standard behavior that has been a fixture of politics at all levels of government for decades has sent political heads spinning. On his firm’s blog, a Virginia lawyer explains:
[U]nder the defense version, the defense has a strong argument that Bob McDonnell did nothing “official” for Jonnie Williams and Star Scientific, because he did not award a contract, hire an employee, issue a license, pass a law, etc. But under the prosecution version, where an “official action” may include “acts that a public official customarily performs, even if those actions are not described in any law, rule, or job description,” even something as minimal as asking an aide to report to him on what was happening with the Anatabloc studies could be seen as an “official action” because it is the sort of thing that governors customarily do.
McDonnell’s best chance lies with the precedent in the Mike Espy case:
Sun-Diamond was fined $1.5 million for giving $5,900 in gifts to Clinton Agriculture Secretary Mike Espy — tickets to the Super Bowl, tickets to the U.S. Tennis Open, etc. The indictments did not charge that Espy specifically DID anything after receiving the gifts, so it was not prosecuted as a bribery or “honest services fraud” case. Granted, there were plenty of things that a Secretary of Agriculture does that could benefit Sun-Diamond, but there was no link between the gifts and whatever those official actions might be.
The fine was reversed on appeal. . . Justice Antonin Scalia’s opinion, for a unanimous court, said that the prosecutor’s interpretation of the law was so broad that even a high school principal could be in legal trouble for giving a souvenir baseball cap to a visiting Secretary of Education. The language that the defense particularly liked was where Scalia distinguished between actions that are assuredly “official acts” in some sense — such as “receiving  sports teams at the White House, visiting [a] high school, and speaking to  farmers about USDA policy” — and the narrower category of “official acts” that fall within the bribery laws. Surely, giving President Obama a Seattle Seahawks jersey when he welcomed the Seahawks to the White House after they won the Super Bowl last year would not constitute a bribe.
The prosecution will point to the conviction of Louisiana congressman William Jefferson, famously found to have stashed wads of cash in his freezer. In that case, “The Fourth Circuit approved jury instructions that said that an “act may be official even if it was not taken pursuant to responsibilities explicitly assigned by law. Rather official acts include those activities that have been clearly established by settled practice as part [of] a public official’s position.” If that is the rule, McDonnell is looking at a stiff jail sentence.
At this point, ingratitude should be the watchword when dealing with donors and rich friends. The safest advice to any politicians is that they give no tickets, invitations or introductions for anyone who has ever given them anything significant, be it a gift or campaign donations. Consider, for example, a big donor who raises millions for a president’s campaign. He then gets invited to a state dinner or gets an award for being a great American. That sort of conduct suddenly becomes high-risk.
The discretion afforded to prosecutors in the post-McDonnell era would be jaw-dropping. How many donors (big or small) have gotten state dinner invitations or access to government agencies (e.g. Solyndra) or even help navigating the bureaucracy, let alone an ambassadorship, in the past few years? Is a Republican prosecutor going to start indicting the Obamas and is a Democratic prosecutor going to go after the speaker of the House, the Senate minority leader and every Republican governor he can find? That is certainly a recipe for disaster.
While true that lawmakers themselves can set concrete rules and thereby limit prosecutorial free-roaming, the optics of passing legislation to protect themselves from corruption charges is so horrible that it may be impossible to achieve. A lot therefore rides on McDonnell’s appeal — for him, the entire political class and thousands of donors.