Bob McDonnell appeal: The former Virginia governor makes his case over the definition of “official acts.”

Bob McDonnell’s Appeals Case: Depends on What the Definition of “Official Acts” Is

Bob McDonnell’s Appeals Case: Depends on What the Definition of “Official Acts” Is

The law, lawyers, and the court.
May 12 2015 5:44 PM

Bob McDonnell Tries, Tries Again

The former Virginia governor, convicted on corruption charges, makes his case to an appeals court. The judges are skeptical. 

Former Virginia Governor Bob McDonnell.
Former Virginia Gov. Bob McDonnell answers questions as he leaves his trial at U.S. District Court on Aug. 28, 2014, in Richmond, Virginia.

Photo by Win McNamee/Getty Images

RICHMOND, Virginia—Former Virginia Gov. Robert F. McDonnell was looking confident as he appeared before a three-judge panel of the 4th U.S. Circuit Court of Appeals on Tuesday morning, appealing his blockbuster public corruption conviction from last fall.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

McDonnell and his wife, Maureen, were convicted after a six-week jury trial in September, of corruption charges stemming  from $177,000 in gifts, luxury items, and loans they accepted from former Star Scientific CEO Jonnie R. Williams Sr., a wealthy Virginia businessman who wanted them to help promote his dietary supplement business. McDonnell was sentenced in January to two years in prison; his wife was sentenced to a year and a day. Their two appeals are proceeding separately. They are both free on bond pending the decision by the appeals court. Maureen still has no date set for oral argument in her appeal.

Once heralded as the most conservative federal appellate court in the country, the 4th Circuit, serving Virginia, Maryland, West Virginia, North Carolina, and South Carolina has changed pretty dramatically in recent years. This fact was immediately in evidence when the three-judge panel, drawn at random, for Tuesday morning’s hearing was announced: McDonnell faced Judge Diana Gribbon Motz, tapped for the court by President Bill Clinton; Robert B. King, another Clinton pick; and Stephanie D. Thacker, who was seated by President Obama.

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The issues before the court were rooted in the defense team’s claim that the entire conviction was based on an erroneous definition of what constitutes “official acts”—a definition blessed by the trial court judge and so broad, they contend, it would sweep in almost any conduct of any public official in office. Their second claim was that the trial court erred in failing to properly question prospective jurors about whether they were influenced by pretrial media about the case.

Noel J. Francisco, one of McDonnell’s lawyers, got 30 minutes to explain his position. He was bolstered by a who’s who of supporters who’ve filed on his client’s behalf, including 44 former state attorneys general who filed a brief with the appeals court contending that if the definition of public corruption used to convict McDonnell is allowed to stand, it would be open season on elected officials who will now be on the hook “for political courtesies and other innocent acts that are a routine part of American political life.”

Bob McDonell.
Bob McDonell outside the appeals court on May 12, 2015.

Photo by Dahlia Lithwick

Francisco’s main argument was that the definition of “official acts” used in the jury instructions could sweep in innocuous conduct ranging from a photo op to asking for a meeting to answering a question posed by a wealthy donor on the phone. As Francisco explained, “The government defined an official act to include every conceivable thing under the sun. There is no limit.” He added that this would mean that simply asking for a meeting is a criminal act, “opening a net for every prosecutor across the country.”

Motz and King did not seem moved—both suggested at times that they felt the defense team’s definition was just legally inaccurate. Francisco then turned to his second point: That the trial judge failed to properly question prospective jurors about whether pretrial publicity had shaped their opinions before the case opened. Again, Motz and King roughed Francisco up about why the judge’s procedure—of administering a juror questionnaire and then asking an en masse pool of eight potential jurors, who had stood up to admit that they had read about the trial, to sit down if they could be fair—was inadequate.

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Richard D. Cooke, an assistant U.S. attorney, then had 30 minutes to present the government’s case. He told the panel that the mass stand-up/sit-down was perfectly reasonable, particularly after having filled out such a fulsome questionnaire. Cooke then turned to the defense’s requested jury instructions, a much narrower definition of “official acts,” and called it, simply, an “error,” because it would mean that a government official’s decision to attend meetings or make phone calls could never be seen as part of his “official acts.” Motz pressed him on language from Citizens United, the Supreme Court’s campaign finance case, about whether “ingratiation and access” alone might constitute corruption, to which Cooke answered, “I don’t think the Supreme Court in Citizens United was meaning to provide a legal definition of bribery law.”

Thacker seemed to be the lone voice on the panel who accepted the defense’s proposed notion of official acts, although even Motz suggested that the trial court could have been more emphatic in explaining to jurors what those words actually mean under the statute. Giving heart to the McDonnell team, at one point Motz suggested that, overall, the case against the former governor is not terribly strong because “it is one in which there is a lot of quid pro proven, but the quo is much thinner”— the quo in question being what Williams received in exchange for the watches, weddings, and gowns.

This offered Cooke an opening to serve up a lengthy, uninterrupted monologue on what he deemed to be the quo: “The nature of the payments has evidentiary force,” he explained to the panel. “The timing is devastating.” Cooke listed off the incriminating details: that the governor took a swish vacation at Williams’ vacation home, drove Williams’ Ferrari back, and then immediately placed a call suggesting meetings about Williams’ dietary supplement, and that the governor, in the midst of negotiating a new loan from Williams, sent emails to staff to meet about studies at Virginia universities on Anatabloc, the diet drug that Williams was hawking. Through it all, the panel just sat back and listened.

Despite those details, Francisco’s rebuttal was powerful, contending that it was “crystal clear” the jury pool was tainted by pretrial publicity and that even a “technically accurate jury instruction can be misleading by omission.” Still, Motz quickly body-checked him for hyperbole when he suggested that jurors were instructed that official acts include “anything under the sun.” Francisco ended by urging the panel to recall that McDonnell is a “long-standing public servant who has committed no crimes.”

In the press conference outside the courthouse, McDonnell, flanked by several of his children, said that he “knows in his heart and soul” that he did nothing wrong and that he has spent the past months doing some consulting work, enjoying his family, and learning to differentiate between the “eternal” and the “temporal.” Soon, the court of appeals will advise him on the fate of his temporal life, at least.