On June 27, 2016, the Supreme Court unanimously reversed the conviction of former Virginia Governor Robert McDonnell on charges of honest services fraud and Hobbs Act extortion. The charges stemmed from the acceptance by McDonnell and his wife Maureen of $175,000 in loans, gifts and various other benefits from Jonnie Williams, a Virginia businessman, while McDonnell was serving as Governor. In order to convict the McDonnells, the government needed to show that the Governor committed to an “official act” in exchange for the benefits.
At the government’s prompting, however, the trial court instructed the jury that the term “official act” encompassed “acts that a public official customarily performs,” including acts “in furtherance of longer-term goals” or “in a series of steps to exercise influence or achieve an end.”
McDonnell requested the court to further instruct the jury that the “fact that an activity is a routine activity, or a ‘settled practice,’ of an office-holder does not alone make it an ‘official act,’” and that “merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, ‘official acts,’ even if they are settled practices of the official,” because they “are not decisions on matters pending before the government.” He also asked the court to explain to the jury that an “official act” must intend to or “in fact influence a specific official decision the government actually makes–such as awarding a contract, hiring a government employee, issuing a license, passing a law, or implementing a regulation.” The trial court declined to so instruct.
The Supreme Court held that the proper definition of an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official.
The Supreme Court further observed that “[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so) — without more– does not fit that definition of “official act.” Therefore, the Court found that the trial court’s jury instructions were erroneous in several ways and McDonnell was entitled to a new trial.
Governor McDonnell also argued that the charges against him must be dismissed because there was insufficient evidence that he committed an “official act” or that he agreed to do so. The Supreme Court left that issue for the Court of Appeals to resolve.