Public Corruption Prosecutions and Defenses Post-'McDonnell'

On June 27, 2016 the U.S. Supreme Court issued its unanimous decision in McDonnell v. United States, holding that federal bribery statutes could not reach a politician who had agreed to provide only preferential access—and not actual governmental action—in return for bribes.¹ Although some feared (and others hoped) that McDonnell would sharply curtail future public corruption prosecutions, the reality is that McDonnell is of limited significance: It prevents prosecutors from bringing only the weakest of public corruption cases, those where the prosecution lacks even circumstantial evidence that a corrupt payoff was for something more than a chance to meet with the public official. In the prototypical public corruption case—where the prosecution can make a straight-faced claim that governmental action, and not just access, was the intended aim of the bribe—McDonnell defenses will have little impact on judges and still less on juries, who may fail to rally around the official who argues he was selling “only” access to an elected office. Moreover, a myopic focus on the McDonnell defense in cases where it will get little traction may obscure more viable and less exploited avenues of legal challenge to the reach of federal corruption laws.

Background

In 2014, former Virginia Governor Robert McDonnell (along with his wife) was indicted on federal corruption charges in connection with their acceptance of $175,000 in gifts and loans from a Virginia businessman, Jonnie Williams, who sought to have his company’s tobacco-based “nutritional supplement” studied by Virginia’s public universities. In return for designer clothing, a Rolex, and other inducements, McDonnell arranged multiple meetings for Williams with officials with oversight of public university research, hosted events for Williams’s company at the Governor’s Mansion, and contacted Virginia officials regarding studying the supplement.²