Virginia Gov. Bob McDonnell appeal: 4th Circuit rejects attempt to stay out of jail.

Former Gov. Bob McDonnell Just Lost His Best Chance of Staying Out of Prison

Former Gov. Bob McDonnell Just Lost His Best Chance of Staying Out of Prison

The law, lawyers, and the court.
July 10 2015 1:54 PM

Official Acts

Former Virginia Gov. Bob McDonnell just lost his best chance of staying out of prison.

Former Virginia Governor Robert McDonnell pauses as he speaks to members of the media outside U.S. District Court for the Eastern District of Virginia after his sentencing was announced by a federal judge January 6, 2015, in Richmond, Virginia.
And now it’s even more official: Former Virginia Gov. Bob McDonnell speaks to the media outside U.S. District Court after his sentencing was announced by a federal judge Jan. 6, 2015, in Richmond, Virginia.

Photo by Alex Wong/Getty Images

The 4th Circuit Court of Appeals has unanimously affirmed the conviction for federal corruption against former Virginia Gov. Bob McDonnell. Unless the U.S. Supreme Court or the entire 4th Circuit issues a stay, it now looks likely that the former governor will have to report to federal prison. The appeals court had been his last meaningful hope for a reversal, although his lawyers have previously said they will appeal to the Supreme Court.

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 following a six-week jury trial last fall on multiple corruption charges stemming from $177,000 in gifts, luxury items, and loans they accepted from former Star Scientific CEO Jonnie R. Williams Sr. Williams wanted them to help promote his dietary supplements, and the question was whether there was quid pro quo corruption stemming from the transactions, or whether they were merely gifts. McDonnell was sentenced in January to two years in prison; his wife was sentenced to a year and a day. The two are appealing separately.

But at a hearing before the 4th Circuit in May, the appellate judges appeared skeptical as McDonnell’s lawyers attempted to challenge the nature of the trial court’s definition of and jury instructions about what constitutes “official acts”—a definition the lawyers claimed was far too sweeping—and claims that prospective jurors were not properly questioned about pretrial media exposure, among other claims.

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The 89-page opinion, written by Judge Stephanie D. Thacker and joined by Judges Robert B. King and Diana Gribbon Motz, is straightforward. The conclusion is emphatic: McDonnell’s claims have no merit. And this all comes despite a wave of support for McDonnell from a wide array of Democratic and Republican politicians, retired federal judges, and legal scholars who supported him by filing multiple amicus briefs with the appeals court.

After a recitation of McDonnell’s troubled financial status while in office, and Williams’ ambitions for his dietary supplement, Anatabloc, the opinion details in the most granular fashion the meetings, gifts, conversations, and emails among McDonnell, his wife and Williams. For nearly 20 pages, the opinion lays out the flow of cars, watches, vacations, gowns, weddings, boat rentals, and other gifts from Williams to the McDonnells, and the ways they pushed his dietary supplement.

The appeals court finds no merit to McDonnell’s claim that his trial should have been severed from his wife’s. The opinion then turns to the issue of pretrial publicity and whether the jurors were sufficiently unbiased and says: “We are satisfied that the trial court’s questioning in this case was adequate to ‘provide a reasonable assurance that prejudice would be discovered if present.’ ”

The court then turns to the fight over the proper definition of “official acts” under the various corruption statues. It concludes, “Appellant has thus failed to show that the court’s ‘official act’ instructions, taken as a whole, were anything less than a ‘fair and accurate statement of law.’ ”

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The court similarly tosses McDonnell’s argument about the jury instructions regarding what might constitute an “official act,” concluding that the trial court was “likewise justified in rejecting Appellant’s assertion that ‘merely arranging a meeting, attending an event, hosting a reception, or making a speech’ cannot constitute an ‘official act.’ ” The court also makes short work of the claim that quid pro quo was not correctly explained to the jurors.

The opinion concludes (channeling Spider-Man in a fashion):

With power comes influence. As the witness Jerry Kilgore, Star’s lawyer, put it: “[T]he Governor is the Chief Executive of the Commonwealth. He has this bully pulpit, if you will, to go out and talk about issues.” The evidence at trial made clear that Star executives wanted Appellant to use his prominence and influence to the company’s advantage. … To the extent, then, that Appellant made any “decision” or took any “action” on these matters, the federal bribery laws would hold that decision or action to be “official.”

In effect the court is buying none of McDonnell’s arguments about how he simply received these gifts and did nothing in his official capacity to help Williams. Finally—and conclusively—the court finds that what McDonnell did to advance Williams’ product indeed constituted official acts:

Appellant argues that these actions—asking a staffer to attend a briefing, questioning a university researcher at a product launch, and directing a policy advisor to “see” him about an issue—are too insignificant to constitute official acts. We disagree. With each of these acts, Appellant exploited the power of his office in furtherance of an ongoing effort to influence the work of state university researchers. Accordingly, a reasonable juror could find, beyond a reasonable doubt, that the actions contemplated under Appellant’s agreement with Williams were “official” in nature.”

The opinion then concludes with a bang of the gavel (and potentially the jailhouse door): “Appellant received a fair trial and was duly convicted by a jury of his fellow Virginians. We have no cause to undo what has been done. The judgment of the district court is AFFIRMED.”