Unusual Alliances Back Ex-Va. Governor in Corruption Appeal
Former Virginia Gov. Robert McDonnell's appeal has spurred some unusual alliances. John Ashcroft, attorney general under President George W. Bush, and Gregory Craig, who spent several years as counsel to President Barack Obama, found common ground in arguing that McDonnell was wrongfully convicted.
March 10, 2015 at 07:36 AM
4 minute read
Former Virginia Gov. Robert McDonnell's appeal has spurred some unusual alliances. John Ashcroft, attorney general under President George W. Bush, and Gregory Craig, who spent several years as counsel to President Barack Obama, found common ground in arguing that McDonnell was wrongfully convicted.
Ashcroft and Craig signed one of nearly a dozen briefs filed so far this month on McDonnell's behalf. McDonnell is appealing his conviction on charges that he took money and other gifts from Virginia businessman Jonnie Williams Sr. in exchange for “official acts” on behalf of Williams' business.
McDonnell, represented by Jones Day and Holland & Knight, argues that the government's case was “built on a boundless definition of bribery that the Supreme Court has rejected.” His lawyers filed their opening brief on March 2 in the U.S. Court of Appeals for the Fourth Circuit. He contends that U.S. District Judge James Spencer gave the jury an “unlimited-and-error-laden” definition of “official acts.”
What follows are highlights of some of the friend-of-the-court briefs filed in support of McDonnell.
A bipartisan coalition of former executive branch officials and congressmen filed a brief asking the Fourth Circuit to reverse the judgment against McDonnell. The group includes three former U.S. attorneys (John Ashcroft, Mark Filip and Michael Mukasey), five former lawyers to the president (Gregory Craig, Lanny Davis, Fred Fielding, C. Boyden Gray and John Quinn) and former U.S. Solicitor General Theodore Olson.
Represented by Gibson, Dunn & Crutcher, the former federal officials wrote in their brief:
“We have no personal interest in the outcome of this appeal. Nor is it our role to pass judgment on whether the conduct prosecuted here was prudent or not. But that is likewise not the purpose of federal public corruption law. That law should not subject government officials to the threat of prosecution for engaging in innocent conduct that occurs on a routine basis. The district court's interpretation of 'official act,' however, would do just that.”
Harvard Law School professors Nancy Gertner, a former federal judge, and Charles Ogletree Jr., along with John Jeffries Jr. of the University of Virginia School of Law, filed a brief together. Represented by William Taylor III of Zuckerman Spaeder, they wrote that previous U.S. Supreme Court cases showed the “erroneous breadth” of the trial judge's jury instructions. They argued:
“The law must provide notice to citizens of what is or is not criminal, and through that notice, cabin a prosecutor's discretion to charge. If there is ambiguity as to whether the Hobbs Act and honest services wire fraud statute cover the conduct alleged here—and there plainly is—due process bars this prosecution.”
Troutman Sanders represented a group of former Virginia attorneys general who served between 1970 and 2001. They wrote:
“We support Gov. McDonnell's appeal of his conviction because the expansive interpretation of federal law on which his conviction is based is erroneous. It is completely alien to any legal advice that any of us would have given to any governor of Virginia.”
Former state attorneys general from across the United States, represented by Alston & Bird, joined forces to file a brief of their own. They argued that the “boundless definition of 'official act' that emerged from the proceedings below threatens to criminalize wide swaths of state political life.” From their brief:
“That uncertainty will make it difficult (nigh impossible) for state attorneys general to advise their clients about whether particular conduct crosses the invisible, constantly shifting line between common political courtesy and indictable corruption. It would paralyze state attorneys general in their efforts to advise their public-official clients about whether activities previously thought innocent now carry the threat of federal criminal liability.”
Hunton & Williams represented U.S. Rep. E. Scott Rigell, R-Virginia, former Georgia Gov. Sonny Perdue, former Mississippi Gov. Haley Barbour and other business leaders and public policy advocates who filed a brief. They wrote:
“To be sure, the world has progressed since Roman Emperor Caligula posted new laws so high up that individuals could not know their obligations (making it easier to prosecute them). Here, the legal uncertainty of an individual's obligations under the government's 'official act' theory would be a reversion to that intolerable state.”
Read the rest of the briefs here:
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