Former Virginia Governor Bob McDonnell had his day in court Wednesday as his lawyer, Noel J. Francisco, presented McDonnell’s case before the highest court in the land.
Speaking before the Supreme Court justices, Francisco laid out the case that his client should not have been convicted because he did not “make a government decision or urge someone else to do so,” and added that the corruption laws were not meant to be “comprehensive codes of ethical conduct.”
Lyle Denniston at SCOTUS Blog wrote, “At the center of McDonnell’s challenge is whether he performed any ‘official acts …'” and continued, “It was that single phrase, ‘official acts,’ that was the target of the most skeptical of the Justices on Wednesday. Justice Kennedy ridiculed it as reaching even a janitor who took a bottle of beer for doing some extra cleaning in an office. Justice Breyer said it was so open-ended that no member of Congress could ask any government official to look into the private matter of interest for a political donor. Chief Justice Roberts marveled at the ‘extraordinary’ fact that a bevy of former White House staff lawyers who had served several presidents submitted an amicus brief warning of the dreadful consequences for democracy if the McDonnell verdict stood.”
Afterward, feedback from news outlets was positive and hopeful that the conviction would be overturned.
Reuters wrote that the Justices expressed doubt and added, “During the one-hour argument, several justices signaled that McDonnell’s action in taking $177,000 in gifts and loans from a businessman seeking to promote a dietary supplement did not constitute a criminal act. Chief Justice John Roberts went further, suggesting the statutes under which McDonnell was convicted could be so broad as to be unconstitutionally vague.”
Headlines from other media outlets were equally positive.
The Wall Street Journal announced, Supreme Court Looks Likely to Throw Out Former Virginia Gov. Bob McDonnell’s Conviction: “The Supreme Court appeared likely Wednesday to throw out former Virginia Gov. Bob McDonnell’s corruption conviction, with justices across the ideological spectrum raising concerns that the government’s concept of bribery was so broad as to criminalize many routine actions by public officials.”
Richmond’s WWBT NBC-12 suggested, Supreme Court expresses extreme skepticism over Gov. McDonnell’s conviction: “Justice Stephen Breyer led the charge against the government’s case saying he had a ‘real separation of powers problem’ with the existing corruption statute the former governor was convicted. ‘Political figures will not know what to do if this conviction stands. The Department of Justice will become the ultimate arbiter of politicians in public life,’ argued Justice Breyer. ‘The power that could be awarded to prosecutors would be dangerous.’ In what is being seen as an excellent day for the former governor, Justice John Roberts also felt the laws as currently written in the Commonwealth may not provide sufficient specificity for McDonnell’s conviction to stand.”
The Associated Press agreed, noting Supreme Court could overturn McDonnell corruption case, and wrote, “The Supreme Court seems likely to overturn the conviction of Virginia Gov. Bob McDonnell on political corruption charges and place new limits on the reach of federal bribery laws.”
Bloomberg‘s headline said, Supreme Court May Raise Bar for Corruption Prosecutions: “U.S. Supreme Court justices signaled they will make it harder to prosecute public officials for corruption, suggesting they will overturn former Virginia Governor Bob McDonnell’s bribery conviction.”
Politico wrote Supreme Court justices appear to be leaning in McDonnell’s favor: “Former Virginia Gov. Bob McDonnell had a surprisingly strong outing at the Supreme Court Wednesday, as majority of the court appeared to be leaning in the direction of overturning the corruption convictions a jury returned against him two years ago. Two members of the court liberal wing — Justices Stephen Breyer and Elena Kagan — expressed serious concerns that the government’s stance could expose public officials to prosecution for all kinds of acts routinely performed for political donors. Breyer appeared particularly troubled that upholding the convictions would shift too much power to federal prosecutors.”
USA Today noted, High court appears likely to ease public corruption rules in McDonnell case: “The Supreme Court appeared likely to side with politicians over prosecutors Wednesday and rule that federal bribery and corruption laws are unfairly ensnaring public officials.”
The Virginian-Pilot took a more careful tone and wrote U.S. Supreme Court hears arguments in former Gov. McDonnell’s appeal: “Although experts caution that questions by the justices should not be read as an indicator of how they’ll rule, the tone of questions was skeptical toward the government’s arguments.”
The New York Times wrote, Justices Lean Toward Bob McDonnell, Ex-Governor of Virginia, in Corruption Case: “The Supreme Court on Wednesday seemed ready to side with Bob McDonnell, the former governor of Virginia who was convicted of public corruption and faces two years in prison. Justices across the ideological spectrum said the laws under which he had been convicted gave prosecutors too much power to convert routine political favors into forbidden corruption.”
The Times also noted this interesting exchange:
Michael R. Dreeben, a lawyer for the federal government, said such a narrow definition was “a recipe for corruption” that would “send a terrible message to citizens.”
Justice Breyer responded that “I’m not in the business of sending messages in a case like this,” adding, “I’m in the business of trying to figure out the structure of the government.”
Justice Anthony M. Kennedy also sounded frustrated, saying that “the government has given us no workable standard” to distinguish political favors from criminal acts.
Mr. Dreeben took a hard line, saying that a vacation or an expensive lunch traded for arranging a meeting could be sufficient. But he added that it was hard to prove criminal intent.
Justice Kennedy reacted with sarcasm. “You’re going to tell the senators, the officials with the lunches, that ‘don’t worry, the jury has to be convinced beyond a reasonable doubt,’ ” he said. [emphasis added]
Will the Justices simply throw out McDonnell’s conviction, or will they take a broader step (as Roberts suggested was at least a possibility) and declare that the bribery laws used to convict him are so vague that they violate the Constitution? A decision isn’t expected until late June, but after today’s oral arguments McDonnell is likely holding a preliminary celebration tonight.
After the hearing, Governor McDonnell said, “I want to say, as I’ve said for the last 39 months, that never during any time in my last 38 years of public service have I ever done anything that would abuse the powers of my office.” He added that he had faith that the justice system would get it right.
Now we wait until June.
See D.J. McGuire’s related post, Supremes to DOJ: Honest Services Fraud? Again?!