Jail Looms for Ex-Gov. Bob McDonnell After Court Rejects Appeal

By Casey C. Sullivan, Esq. on July 16, 2015 | Last updated on March 21, 2019

Jail time is becoming ever more likely for former Virginia Governor Bob McDonnell, who was convicted of public corruption charges last year. McDonnell's conviction stemmed from accepting $177,000 in loans, gifts, and other perks in exchange for promoting a friend's dietary supplements.


McDonnell was sentenced to two years in prison but has remained free while he appeals the conviction. The Fourth Circuit rejected his appeal last week, bringing him one step closer to serving time.

Upholding a Broad Definition of Official Acts


McDonnell was convicted of eleven counts of wire fraud and public corruption. He maintained throughout his trial that he never promised or performed "official acts" in exchange for cash or gifts. According to McDonnell, there was no quo in the quid pro quo.


On appeal, McDonnell alleged a variety of errors, but his strongest claim was that the court adopted an interpretation of "official acts" that was decidedly overbroad. The district court's jury instructions defined "official acts" as "any decision or action on any question, matter, cause ... brought before any public official, in such official's official capacity." Those acts included even the exercise of "influence, power or authority."


McDonnell argued that the definition made all acts official acts, no matter how minor. The Fourth circuit disagreed, noting that the decisions or actions must stem from a politician's "official capacity." That sufficiently delimits official acts from, say, attending a lunch or posing for a photo, the Fourth said. Supporting that decision was a 1914 Supreme Court case, finding that "official acts" could include customary, informal acts.


A Disconnect Between Politicians and Courts


Despite his fall from grace, McDonnell has gained massive support from a politicians, retired judges, and legal scholars. Nine of the ten amicus briefs filed in his case objected to the district court's definition of "official acts." Those amici covered everyone from 44 former attorneys general to the National Association of Criminal Defense Lawyers to liberal and conservative legal scholars.


The court was unswayed by McDonnell and his friends, who claimed that upholding a broad definition of official acts would "wreck havoc on the public life" of office holders. As George Mason University public policy professor Mark Rozell told the Daily Press, "What judges and juries think constitutes corruption does not align with the views of elected officials past and present ... there are very different perceptions at work here."


Indeed, there are. For now, the court's perception has won out. McDonnell will now have to convince an en banc Fourth or the Supreme Court that his definition of corruption is superior or he'll soon have to report to jail.


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