I. Under the federal bribery statute, Hobbs Act, and honest-services fraud statute, 18 U.S.C. §§ 201, 1346, 1951, it is a felony to agree to take “official action” in exchange for money, campaign contributions, or any other thing of value. The question presented is whether “official action” is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.
Lower court opinion: United States v. McDonnell, 792 F.3d 478 (4th Cir. 2015).
While serving as governor of Virginia, McDonnell and his wife accepted over $100,000 in loans and a number of lavish gifts from one Jonnie Williams. Williams was the CEO of Star Scientific, which made a dietary supplement called Anatabloc. Williams wanted to get Anatabloc approved by the FDA for pharmaceutical use, but could not afford the clinical studies that would be necessary. He therefore sought McDonnell’s assistance in getting public medical schools in Virginia to perform the studies.
McDonnell did try to help him in various ways: inviting Williams to a cocktail reception for “Healthcare Leaders”; asking his chief counsel to “see me” about the research studies; suggesting to the administrator of the state health insurance plan that Anatabloc might be good for state employees; sending a staffer to meet with Williams; and appearing at a private lunch at the Executive Mansion where Williams handed out checks to university researchers. The government charged these actions were “official acts” done in exchange for the loans and gifts and therefore consummated federal crimes including honest-services wire fraud and bribery, and a jury convicted.
The Fourth Circuit upheld the conviction, and McDonnell petitioned for cert. The question the Court agreed to decide is whether the sorts of things McDonnell did for Williams are “official acts” subject to the various federal anti-corruption statutes. (The Court declined to hear a second question regarding the district court’s voir dire procedures.) Though the facts do not appear to be in much dispute, the parties differ sharply on how to characterize just what McDonnell gave Williams. McDonnell (along with the slew of amici weighing in on his side, including NACDL) calls it “access” and relies on various decisions, notably Citizens United v. FEC, 130 S. Ct. 876 (2010), to argue that giving “access” for cash either falls outside the statutory prohibitions or, if prohibited, renders those statutes unconstitutionally vague and contrary to the First Amendment. The government asserts that McDonnell did more than grant “access” and instead agreed to “use his position to influence state officials to dispose of government matters in a manner favorable to Williams.”
The resolution of this case is clearly of interest to federal practitioners (and to state and local government officials and employees). Even if the Court decides the issue strictly on statutory construction grounds, it may have some impact on state law, as Wisconsin’s bribery statute and the federal ones at issue contain some similar language. If the Court elects to bring the Constitution into it, the case’s effect on state law could of course be much greater.
