Meanwhile, Bob McDonnell’s opening brief goes to the Supreme Court

While Virginia’s punditry has been fixated by tomorrow’s primary, former Governor Bob McDonnell’s opening brief went to the U.S. Supreme Court, to join the great backlog of cases stuck in 4-4 deadlock by the passing of Associate Justice Antonin Scalia, which ensured partisan and ideological —

Whoa there! To quote Lee Corso: Not so fast, my friend. The former governor may be one of the very few appellants who gets justice and relief from the undermanned Court.

Those who have read my Bob McDonnell posts on this blog are aware that I am not a fan of the ex-Governor. I remain convinced that his legacy will be the unnecessary 2013 tax hike and the US 460 parallel debacle – that infamous road that never was but still cost $300 million. However, just because I disapprove of the Governor’s political record doesn’t mean he deserves a criminal one. Rather, his conviction for “honest services fraud” says more about the idiotically vague statute – and the ambitious prosecutors who use the law’s shades of gray to inflict far more pain than any Seattle tycoon could possibly imagine – than about anyone caught in its wake.

Less than six years ago, the Court had the opportunity to give approval or opprobrium to “honest services fraud.” Seven of the justices who heard that case (Skilling v. United States) are still on the Court (Justice Stevens has since been replaced by Justice Kagan). Three of them (including the late Justice Scalia) would have wiped the law clear off the books. More to the point, all of them insisted that there had to be actual bribery or kickbacks involved (New York Times).

As it happens, McDonnell’s lawyers reminded the Court of its recent history. From their brief:

In Skilling, this Court did everything it could to preserve the will of Congress without striking down the law. It took the prohibition against deprivation of “the intangible right of honest services”—a phrase that alone provides no meaningful guidance to the prosecutors who enforce it, the judges who interpret it, or the citizens who go to jail when they transgress it—and confined it to “the bribe-and-kickback core of the pre-McNally case law.” 561 U.S. at 409. But rather than celebrate this Court’s preservation of that powerful statute, the Government responded by trying to evade that holding—converting virtually everything officials do into quid pro quo bribery. If every benefit can be quid and juries can infer pro from circumstance, then expanding quo to encompass everything officials customarily do revives the same boundless authority to prosecute ethically questionable conduct that Skilling rejected.

So we’re clear, the Court was slapping down prosecutions that originated in the Bush Administration in Skilling. This is why I’ve never joined those who insisted that the McDonnell prosecution had partisan motives. Justice Departments push the envelope of the law no matter who resides at 1600 Pennsylvania Avenue.

However, when they do on this slice of the law, the Court pushes back, hard. I’m expecting they’ll do it again, eight justices or nine.