Bob McDonnell Team Files Reply Brief With U.S. Supreme Court Today

Brief Argues That Government Overstepped Scope Of Federal Corruption Laws;

Also Slams Federal Prosecutors For Displaying “Extraordinary Disregard” For Unanimous Supreme Court Decisions in Seeking to “Brandish Open-Ended Felonies”

WASHINGTON, DC (April 13, 2016) – Former Virginia Governor Bob McDonnell’s legal team filed its Reply Brief with the nation’s highest court today, arguing that in convicting McDonnell, the U.S. government dramatically overstepped the bounds of federal corruption laws and that federal prosecutors displayed “extraordinary disregard” for unanimous Supreme Court decisions in seeking to “brandish open-ended felonies.”

Today’s brief is in response to the government’s March 30 filing by U.S. Solicitor General Donald B. Verrilli Jr. and also comes exactly two weeks before the Supreme Court of the United States will hear oral arguments on McDonnell’s appeal (April 27, 2016).

To view the entire brief:

Some key excerpts from the brief:

-The Government is very wrong.  The federal corruption laws are not omnibus good government provisions.  They are confined to “the most blatant and specific attempts … to influence governmental action.”  Buckley v. Valeo, 424 U.S. 1, 28 (1976) (per curiam).  Far from condemning every instance of janitorial favoritism, these laws target the serious problem of public officials who abuse the sovereign power they wield by virtue of their offices. 

 -The Government openly advocates a legal rule that would make a felon of every official at every level of government—from a “cabinet secretary” to a “janitor” (U.S.Br.20)—who accepts travel in exchange for public appearances, who has lunch with a lobbyist when both know the lobbyist will pick up the check, who trades campaign contributions for a few minutes of time, or who cleans one classroom with special care because its teacher brings him gift cards.

 -The Government’s position is that “official action” includes everything officials do in their official capacity.  U.S.Br.20.  On that limitless definition, official action encompasses everything from appearing at events to handling “routine constituent services.”  U.S.Br.31, 33.  If that is so, any federal, state, or local official who accepts gifts, travel, or campaign contributions in exchange for such acts is a felon—even if he never exercises, agrees to exercise, or presses anyone else to exercise governmental power on his benefactor’s behalf.

 -The Government does not identify a single case that departs from the sovereign-power paradigm.  It also ignores United States v. Rabbitt, which vacated the conviction of the Missouri House Speaker, who took payments for setting up meetings with state contracting officials.  583 F.2d 1014, 1026-27 (8th Cir. 1978).  The court held that accepting bribes to “influence” or “control” contract decisions is unlawful; but selling “access”—so long as the decision maker awards contracts “on merit”—is fundamentally different.  Id.

 -Efforts to secure particular resolutions of governmental decisions are attempts to “influence” those decisions.  But if an official does not advocate, recommend, counsel, pressure, urge, direct, advise, encourage, lobby, cajole—i.e., make clear he wants a particular decision—then he does not corrupt the process.  The Government’s contrary claim wrongly conflates influence over decisions with access to decisionmakers.  Thus, every court to address this issue has explained that only the former constitutes “official action.”  E.g., United States v. Carpenter, 961 F.2d 824, 827 (9th Cir. 1992) (“granting or denying access … not an ‘official act’”); Rabbitt, 583 F.2d at 1027 (selling “access” not criminal); Urciuoli, 513 F.3d at 296 (trading on “access” not criminal); see also Sun-Diamond, 526 U.S. at 407-08. In short, urging another official to make a sovereign decision is plainly an official act.  But that does not advance an inch the Government’s extraordinary theory that everything officials do in their official capacity equally qualifies.

 -If the Fourth Circuit opened the floodgates to prosecuting nearly any elected official nationwide (Pet.Br.40-43), the Government bombs the levees. Its “official capacity” rule would leave every official and donor at every level of government at the mercy of federal prosecutors. It is beyond commonplace for officials to accept first-class travel for speeches, or for politicians to trade access for campaign donations. Yet the Government doubles down on the notion that all of this is illegal. U.S.Br.32-33.

 -The Government insists its sweeping rule would not “wreak havoc upon participatory democracy” (VA.AGs.Br.2), because prosecutors must still prove a pro (U.S.Br.33).  That is no solution at all.

 -The Government’s rule flouts precedent, breaks from history, rewrites the statute, and greenlights prosecution of officials (and donors) nationwide. At minimum, that is foreclosed by the rule of lenity and other constitutional canons. Pet.Br.21-25. Even if Sun-Diamond were “erroneous,” Governor McDonnell cannot be jailed for believing otherwise.

 -The Government advocates this extraordinary legal rule because the convictions cannot survive without it.  The undisputed evidence was clear: Governor McDonnell neither took nor agreed to take “official action,” properly understood.  This Court should thus reverse the convictions and dismiss the charges.

 -Officials need not use “magic words” to improperly sway government decisions (U.S.Br.44), but they must do something. Governor McDonnell never did, which is why Williams did not receive any government assistance despite supposedly bribing the most powerful official in Virginia for two years. That wholly insufficient evidence requires reversal and dismissal of the charges.

 -To the extent there was doubt about whether the Government can be entrusted with vague corruption statutes, its position here dispels it. Jettisoning this Court’s decisions as “erroneous” and ignoring its confinement of honest-services fraud to “core” bribery, the Government seeks to arm federal prosecutors nationwide with the power to imprison every “filing clerk” who more carefully staples copies for a litigant who sometimes brings him breakfast (U.S.Br.20), every legislator who trades “routine constituent services” for “$100 campaign contribution[s]” (U.S.Br.33), and every judge who accepts luxury accommodations in exchange for “appearances” at foreign locations (U.S.Br.31).

 -The Constitution forbids boundless prosecutorial discretion, and the prosecutorial reaction to this Court’s rescue of honest-services fraud in Skilling confirms that cabining these statutes has been a “failed enterprise.” Johnson v. United States, 135 S. Ct. 2551, 2560 (2015); see also Jealous.Br.19-31. If Congress wants to vest unelected prosecutors with the extraordinary power to police state and local ethics, it must speak with far greater clarity than it has. “[T]he phrase ‘under color of official right’ … is vague almost to the point of unconstitutionality,” Evans, 504 U.S. at 275 (Kennedy, J., concurring in part and in judgment), and no official—certainly no state official focused on state ethical rules—could have anticipated the Government’s sweeping construction, VA.Law.Profs.Br.20-25. The Court should thus invalidate the honest-services statute and hold the Hobbs Act unconstitutional as applied.

# # #

Last month, 13 amicus briefs were filed in an unprecedented demonstration of support for McDonnell by hundreds of the country’s top legal minds, scholars, top political leaders from both parties, business leaders, advocacy groups, civil rights leaders, and other policy makers. The 13 amicus briefs include an array of interests representing virtually every sector of American society, all urging the U.S. Supreme Court to reverse the conviction. While 10 of the briefs had similar versions filed previously in the case, the number of signatories increased considerably and now includes:

  • 83 former state attorneys general from both political parties including 45 Democrats, 37 Republicans, and one Independent from 46 states, territories, and Washington, D.C.
  • The Republican Governors Association Policy Committee representing 33 current governors
  • 88 current and former Virginia legislators from both political parties
  • 233 business/policy leaders including numerous Presidents and CEO’s of major corporations, 3 former governors, and several members of Congress

Additionally, three new briefs were filed: one by civil rights leaders led by former national NAACP President Benjamin Todd Jealous, arguing that the statutes at issue are unconstitutionally vague and detailing the deep roots of the void-for-vagueness doctrine in persecuting disfavored minorities; another brief by the James Madison Center for Free Speech arguing that the Fourth Circuit’s decision threatens to upend the campaign finance system; and a third new brief was filed on behalf of wide-ranging public interest and advocacy groups, specifically the U.S. Justice Foundation, Citizens United Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, and the Institute on the Constitution, which argues that Congress lacks constitutional power to police purely local corruption.

Some of the most notable names signing the amicus briefs include:

  • Greg Craig, White House Counsel, President Obama (2009-2010)
  • Fred F. Fielding, White House Counsel, Presidents’ Ronald Reagan and George W. Bush (2007–2009 & 1981–1986)
  • John M. Quinn, White House Counsel, President Bill Clinton (1995-1997)
  • Boyden Gray, White House Counsel, President George H.W. Bush (1989–1993)
  • Lanny J. Davis, Special White House Counsel, Bill Clinton (1996–1998)
  • Ted Olson, Former US Solicitor General (2001-2004)
  • Michael B. Mukasey, U.S. Attorney General (2007-2009)
  • John Ashcroft, U.S. Attorney General (2001–2005), U.S. Senator (1995–2001), Governor (1985-1993)
  • Nancy Gertner, Former federal judge (Clinton-appointed) and current Harvard Law Senior Lecturer,
  • Charles Ogletree, Harvard Law School’s Jesse Climenko Professor of Law & mentor to Pres. Obama
  • John Jeffries, Former Dean and Current Distinguished Professor UVA School of Law
  • 33 current governors via the Republican Governors Association Policy Committee
  • Former Governors Haley Barbour, Sonny Perdue, and Jan Brewer
  • Current and Former United States Representatives Scott Rigell, Reid Ribble, Michelle Bachman, Jim Moran, and Tom Davis
  • Ben Jealous, Former President National NAACP
  • Corporate Presidents and CEOs Brad Antle, Joe Damico, Dennis Ellmer, Heywood Fralin, Edward Garcia, Richard Gilliam, William Goodwin, Thomas Gottwald, John Hager, Charles Hill, George Holm, Bobbie Kilberg, John Lawson, Gary LeClair, Gene Loving, Frederic Malek, Dario Marquez, Vince Mastracco, William McGee, Cheryl McLeskey, Donna Morea, Frederick Napolitano, Rob Quartel, Rod Rodriguez, Joel Rubin, Arthur Sandler, Bradley Schwartz, Robert Sledd, Bruce Thompson, Jim Ukrop, Michel Zajur
  • Current and Former University presidents Keith Miller, Jerry Falwell, Carlos Campo, Pat Robertson, Gary Rhodes
  • Leading Virginia legislators: Speaker of the House William Howell, House Majority Leader Kirk Cox, House Deputy Majority Leader Todd Gilbert, House Republican Caucus Chairman Timothy Hugo, Senate President pro tempore Stephen D. Newman, Senate Republican Caucus Chairman Ryan T. McDougle, Senate Majority Leader Thomas Norment, Senate Leader Emeritus Walter Stosch, House Courts Of Justice Chairman Dave Albo, Democratic Senators David Marsden, Charles Colgan, and Scott Surovell
  • Top Law Professors from 5 Virginia Law Schools

Governor McDonnell was granted a Writ of Certiorari on January 15, 2016, and filed his opening brief on February 29, 2016. McDonnell argues that the government’s legal theory in this case has shattered the line that separates quid pro quo corruption from the provision of routine access and constituent service that defines democratic politics—routine access that the Supreme Court has said in other cases is constitutionally protected.  The Department of Justice has, in this case, construed the meaning of “official action” so broadly that it has transformed commonplace actions by elected officials at all levels of government nationwide into federal felonies whenever a jury infers a link to a donor’s contributions or gifts.

To view the amicus briefs and previous filings:



Chris Roslan

Roslan & Campion Public Relations

(office) 212.966.4600

Posted by
Cheryl McLeskey
President Restoration Fund