Prosecutors in the Eastern District of Virginia want to retry former Virginia fovernor Robert F. McDonnell, even after the Supreme Court threw out the first case against him and narrowed the definition of public corruption. (Alex Wong/Getty Images)
Less than three months after the Supreme Court vacated the convictions of former Virginia governor Robert F. McDonnell, the U.S. attorney’s office that prosecuted the Republican has recommended to Justice Department higher-ups that they endeavor to try him again, according to people familiar with the case.
The recommendation from the U.S. attorney’s office in the Eastern District of Virginia does not guarantee that McDonnell will once again have to battle corruption charges in court. The decision ultimately rests with senior officials at the Justice Department, including the deputy attorney general and possibly the attorney general. But it is a significant step that demonstrates how despite a Supreme Court ruling upending McDonnell’s convictions and significantly narrowing what can be considered public corruption, the prosecutors who convinced jurors that he was guilty the first time believe they could do it once more.
An attorney for McDonnell, a Justice Department spokeswoman and a spokesman for the U.S. attorney’s office all declined to comment. Asked in an interview earlier this week whether she would accept the recommendation of prosecutors who handled the case — whatever that might be — Attorney General Loretta E. Lynch said, “That’s working its way through the process, so I’m not able to give you a comment on that.”
Prosecutors have until Sept. 19 to formally inform the U.S. Court of Appeals for the 4th Circuit what they intend to do and — if they are going forward — to set a briefing schedule.
McDonnell and his wife, Maureen, were convicted in 2014 of public corruption charges after jurors concluded that they lent the power of the governor’s office to Richmond business executive Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury goods. Prosecutors alleged that the McDonnells helped Williams specifically by arranging meetings for him with other state officials and allowing him to host an event at the governor’s mansion to promote a product he was trying to sell. In one case, prosecutors alleged, the governor pulled out a bottle of that supplement, Anatabloc, and told other state officials that it worked for him.
Legal analysts have said Maureen McDonnell’s fate is probably tied to that of her husband.
Prosecutors alleged that the ultimate aim of the bargain with Williams was to get Anatabloc studied by state researchers or included in the state’s health plan. Neither came to fruition. And although the former governor’s convictions were upheld by a federal appeals court, the Supreme Court decided that was in error.
Justice Department officials are probably weighing not only whether a case could be brought again but also whether it should. McDonnell’s first trial spanned five weeks, and it came after months of bitter and time-consuming pretrial litigation. Four prosecutors in the Eastern District of Virginia and the Justice Department’s public integrity section were consumed by it. McDonnell was ultimately sentenced to two years in prison; his wife to a year and a day.
And from the case came a unanimous Supreme Court ruling that experts say makes prosecuting politicians on corruption charges substantially more difficult than it was before. It is possible more successful challenges could lead to a further narrowing of corruption laws and hamper other investigations.
The Supreme Court’s ruling dealt a critical blow to the case against McDonnell but not an immediately fatal one. The court decided that jurors were wrongly instructed on the meaning of the term “official act” — the thing that prosecutors were required to prove McDonnell did or tried to do for Williams in exchange for the businessman’s favors — and offered a definition far more narrow than what jurors had considered.
For the purposes of a bribery case, an official act “must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee,” Chief Justice John G. Roberts Jr. wrote.He said it must be “something specific and focused” and that the public official must make a decision or take an action on it, or at least agree to do so.
“Setting up a meeting, talking to another official, or organizing an event — without more — does not fit that definition of ‘official act,’ ” Roberts wrote.
McDonnell’s defense attorneys had wanted the case to be thrown out wholesale on the grounds that prosecutors had presented insufficient evidence of an official act. But the Supreme Court declined to do that, saying both sides had not had an opportunity to address the question in light of the court’s clarified definition.
And the opinion offered a possible way forward. While setting up meetings or calling other government officials could not be official acts by themselves, Roberts wrote, they could serve as evidence of an agreement to perform such an act — if, for example, jurors concluded the meeting helped show an official was attempting to pressure or advise another official to do something more.
In McDonnell’s case, the U.S. Court of Appeals for the 4th Circuit decided that something more would be trying to influence whether researchers at any of Virginia’s state universities would initiate a study of Anatabloc; whether the state-created Tobacco Indemnification and Community Revitalization Commission would allocate grant money for the study of Anatabloc’s key ingredient; or whether the state health plan would include the product.
But, because of the jury instructions, jurors might not have considered those things and wrongly convicted McDonnell because they concluded that he arranged meetings for Williams or contacted other state officials in exchange for Williams’s generosity, Roberts wrote.
If the Justice Department allows prosecutors to go forward, they will first have to convince the U.S. Court of Appeals for the 4th Circuit that there is enough evidence to proceed — which is no guarantee. That decision itself could be appealed to the Supreme Court.And if they ultimately go to another trial, prosecutors would have to recalibrate how they present their case, focusing less on the meetings and events themselves than on how they show that Williams and McDonnell had broader plans.
That will not be easy. Roberts noted in the opinion that several McDonnell subordinates had testified at trial that the governor “asked them to attend a meeting, not that he expected them to do anything other than that.”
“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 described by the Fourth Circuit,” Roberts wrote. But he noted that jurors “may have disbelieved that testimony or found other evidence that Governor McDonnell agreed to exert pressure on those officials to initiate the research studies or add Anatabloc to the state health plan.”
Rachel Weiner and Rosalind S. Helderman contributed to this report.
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