The McDonnell case: Another study in criminal law as Democrat partisan warfare

Former Virginia governor Robert McDonnell, by most accounts a popular governor, had a good day yesterday when a unanimous Supreme Court overturned his conviction on “honest services” fraud and Hobbs Act extortion charges.

The case was brought by U.S. attorney Dana Boente, an Obama appointee.  The trial court judge was federal district court judge James R. Spencer, in circumstances about which Rachel Alexander wrote at the time of the conviction in Townhall:

On January 7, former Virginia Governor Bob McDonnell, a conservative Republican once considered a leading contender for President, was sentenced by a judge to two years in federal prison. A jury found him guilty of 19 counts of honest services wire fraud, obtaining property under color of official right, and extortion under color of official right in September for accepting more than $177,000 in loans and gifts from Jonnie R. Williams, the head of a dietary supplements company, who was later invited to the governor’s mansion and his cabinet. McDonnell’s wife Maureen was convicted of similar charges and will be sentenced later this month. McDonnell repaid more than $120,000 to Williams in 2013, before he was indicted, but prosecutors didn’t care.

Federal District Court Judge James R. Spencer could have sentenced McDonnell to community service, but instead threw the book at him. Tellingly, it came out in December that McDonnell had opposed the appointment of Spencer’s wife 18 years ago to the Virginia State Supreme Court during a partisan battle in the state legislature. McDonnell nominated someone else instead, and Margaret Spencer never made it onto the State Supreme Court, instead becoming a Circuit Court judge in Richmond. Reagan appointed Judge James Spencer to the bench, but it is reported that he and his wife are both Democrats.

The Appellate Court, which affirmed the conviction, a three-judge panel of the Fourth Circuit, was composed of Judge Stephanie D. Thacker, Judge Robert B. King, and Judge Diana Gribbon Motz.  Thacker was appointed by President Obama; Judge King was appointed by Bill Clinton, as was Judge Motz, who quipped of her Republican husband, "Yes, it's true: he's a Republican.  It's his only flaw."

It’s common for those unhappy with a decision to criticize the partisanship of the judges involved, but the weakness of the case, which was evident when it was argued in the Supreme Court (and during the trial itself), and the fact that it was reversed unanimously warrant a raised eyebrow.  It comes on the heels of the reversed prosecutions of then-senator Ted Stevens, Governor Rick Perry, House majority leader Tom DeLay, the IRS war on Obama’s opponents in the Tea Party and other conservative groups, and the outrageous trampling the rights of those who worked for and supported Wisconsin governor Scott Walker.  This case and those matters lead to an inescapable conclusion: with the endorsement of partisan juries and/or judges, the Democratic Party seeks to and will use the power of the prosecution to destroy Republican political leaders and anyone who supports them.

The salient facts in the case are these outlined by SCOTUSblog and cited by Ann Althouse, quoting SCOTUSblog:

The issue was what counted as an "official act" within the statutory law, and the Court said the government's "expansive interpretation" might have violated the Constitution:

In the Government’s view, nearly anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and nearly anything a public official does—from arranging a meeting to inviting a guest to an event— counts as a quo. See Brief for United States 14, 27; Tr. of Oral Arg. 34–35, 44–46.

At trial, McDonnell had sought an instruction to the jury that “merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, official Acts” within the meaning of the law, but the trial court declined to do so.  The appellate court found that there was nothing wrong with that ruling.

The Supreme Court rejected out of hand that overly elastic reading:

But conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official 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 could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. 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 democratic discourse.

It’s not the first time the Court has made it clear that such innocuous behavior does not violate the law: take United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, where the Court (again unanimously) found no necessary nexus between an agriculture group’s contribution to agriculture secretary Michael Espy and the matters under his review relating to the group.

The law was thus rather well settled on this point, and neither the prosecution nor the trial and appellate courts gave it the required deference, nor exercised any reasonable (or fair) judgment on the salient issue.

The reversal was well received by McDonnell.  His wife’s appeal remains pending.  His political career was shattered, and Terry McAuliffe, Clinton’s close colleague, replaced him in office.

There remains a loose end.  The Supreme Court held:

Governor McDonnell argues that the charges must be dismissed because there is insufficient evidence that he committed an “official act,” or that he agreed to do so. Brief for Petitioner 44–45. Because the parties have not had an opportunity to address that question in light of the interpretation of §201(a)(3) adopted by this Court, we leave it for the Court of Appeals to resolve in the first instance. If the court below determines that there is sufficient evidence for a jury to convict Governor McDonnell of committing or agreeing to commit an “official act,” his case may be set for a new trial. If the court instead determines that the evidence is insufficient, the charges against him must be dismissed. We express no view on that question.

That is to say, the Court of Appeals must decide if there’s even a shred of evidence presented at the trial that would support a conviction under the correct reading of “official act.”  If it finds any, it can send it back to the circuit court for a new trial.  In that unlikely case, the prosecution must decide if they want to retry McDonnell under a proper reading of the law and correct jury instructions.

Reportedly, the prosecutor is considering whether to do so.  I’d not bet on it.  I rather presume he turned over every rock the first time and presented the best evidence he could find – paltry as it was – then, and that evidence couldn’t possibly meet this appropriate standard.

In the meantime, McDonnell’s political career, finances, and family have suffered greatly by this strained reading of the law to cover conduct which the Supreme Court and ordinary common sense support was not criminal, but rather ordinary and perfectly proper official conduct.

A number of newspapers are already suggesting that this might clear people like former New York Assembly speaker Sheldon Silver.  I don’t see that ordinary corruption, proven quid pro quo like his is not legalized by this ruling.  Innocent conduct is.

What I would bet on is that Democrats will continue to stretch the criminal law for partisan advantage and that, if elected, Hillary will appoint prosecutors and judges willing to continue to mount such legal warfare.