Prosecutors in Virginia want an additional month to respond to the Supreme Court decision overturning former governor Robert F. McDonnell’s corruption conviction.
With agreement from McDonnell’s defense attorneys, the U.S. Attorney’s Office for the Eastern District of Virginia asked the U.S. Court of Appeals for the 4th Circuit to suspend the case for 30 days while lawyers are “analyzing the Supreme Court’s opinion and discussing what steps to take next in this case.”
The motion was filed late Thursday. The parties suggest that in 30 days, they will either come up with a schedule for further action or update the court on the status of their discussions.
McDonnell was found guilty of public corruption in 2014, and the appeals court upheld that conviction. But the Supreme Court unanimously agreed last month that the law governing bribery of public officials had been misinterpreted in the case and ordered the appeals court to reconsider its decision in that light.
If the appeals court determines there is still enough evidence to convict McDonnell, prosecutors could call for a new trial. But experts said it would be difficult to win a conviction after the ruling from the Supreme Court, which found that the jury was given too broad a description of an “official act.”
After losing at the country’s highest court, prosecutors in Virginia will have to consider the viability of their legal theories and the likelihood of success at a second trial.
The facts of the case and the evidence investigators gathered have not changed.
“The real issue is: Can the facts be interpreted or applied differently, or are there additional facts that were not introduced during the case that the government could use to salvage the prosecution?” said Jacob Frenkel, a white-collar criminal defense lawyer at the Dickinson Wright law firm.
Typically, in these circumstances, Frenkel said, the government would lean against going forward after having already put on its strongest case during the first trial.
The internal deliberations also could involve policy questions likely being discussed at the highest levels of the Justice Department, said Justin Shur, former deputy chief of the public integrity section who is now in private practice at the MoloLamken firm.
Those questions relate to whether the government’s evidence is sufficient to show an “official act” as a matter of law based on the Supreme Court’s narrow interpretation of that term.
McDonnell, a onetime Republican rising star, has always maintained that he did nothing official for Jonnie R. Williams Sr., despite the gifts and loans the Richmond businessman gave him. Prosecutors, however, argued that the generosity was part of a quid pro quo in which the governor used the power of his office to promote Williams’s vitamin supplement business.
McDonnell, through a spokesperson, declined to comment Friday. Federal prosecutors in Virginia also declined to comment.
McDonnell’s wife, Maureen, was found guilty of conspiring with her husband and convicted of public corruption charges. Her case remains on appeal.
Ann E. Marimow contributed to this report.