The U.S. Solicitor General on Wednesday essentially urged the Supreme Court’s chief justice to send former Virginia governor Robert F. McDonnell to prison while he pursues his last legal avenue to overturn his public corruption convictions, arguing McDonnell cannot make the “demanding showing” required to maintain his freedom as he tries to convince the nation’s high court to hear his case.
In a 40-page filing, Solicitor General Donald B. Verrilli Jr. said Chief Justice John Roberts should reject McDonnell’s request to remain out on bail while his lawyers prepare a Supreme Court challenge — an outcome that would kickstart the process to put the former governor behind bars, probably in a few months.
Verrilli argued the Supreme Court was not likely to agree to hear McDonnell’s case, let alone reverse his convictions — two points McDonnell had to demonstrate to win his continued release.
McDonnell and his wife, Maureen, were convicted in September of public corruption for lending the prestige of the governor’s office to Richmond businessman Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury goods. He was sentenced to two years in prison; she to a year and a day.
Both, though, were allowed out on bond with their appeals pending, and the former governor — who lost his appellate case — is now hoping to extend his freedom until the Supreme Court decides whether it will weigh in.
McDonnell’s last hope for that lies with Roberts — or the entire Supreme Court, if Roberts feels that is necessary. A federal appeals court last week turned down his request to remain free while his lawyers prepared his Supreme Court challenge, prompting McDonnell to turn to the nation’s highest judicial authority seeking the same result. Roberts then ordered prosecutors to respond and decided that — at least while he weighs the issue of bail — McDonnell will be allowed to stay out of prison.
Maureen McDonnell’s appeal is proceeding separately, with oral arguments scheduled for October at the U.S. Court of Appeals for the 4th Circuit.
Now that Verrilli has responded, Roberts could decide the issue of McDonnell’s bail within days. If the ruling goes against the former governor, experts have said, the case would then be sent back to a lower court judge, who would likely set a date by which he had to report to prison. McDonnell could be behind bars within two months, experts have said.
To win a longer reprieve, McDonnell must convince the chief justice that there is a “reasonable probability” that four justices would agree to review his case, that there is a “fair prospect” that a majority would ultimately rule in his favor and that he would suffer irreparable harm if his request were denied.
Doing that would be a significant win for the former governor, giving him some hope the Supreme Court might actually agree to hear his case and allowing him to stay out of prison for months. The former governor has until Nov. 9 to file his petition asking the Supreme Court to take up the case, and the justices probably would take many weeks after that to consider whether they should hear the matter.
McDonnell has argued his case, if allowed to stand, would criminalize routine dealings between politicians and those who give them something, and that it raised issues on which the Supreme Court was likely to want to opine.
Verrilli countered all those arguments in the filing Wednesday, asserting McDonnell’s argument rested on an “overbroad understanding” of the appeals court’s decision and failed to acknowledge unfavorable aspects of the case. He wrote McDonnell’s conviction and the appeals court’s decision rested on the case’s “unusual facts” that pointed to the former governor’s involvement in a corrupt quid pro quo.
“The decision below does not raise broad questions of law on which courts disagree, but instead presents a sound application of settled legal principles to the facts established at trial,” Verrilli wrote. He said McDonnell’s continued release was “unwarranted.”