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Supreme Court Narrowly Defines “Official Act” in McDonnell Case

This morning, the United States Supreme Court issued its opinion in McDonnell v. United States, rejecting the Government’s broad interpretation of an “official act” under federal bribery law. The Court held that without more, setting up meetings, talking to other officials, and organizing events are not “official acts” as defined by statute. In an opinion authored by Chief Justice John Roberts, the Court unanimously agreed to narrowly interpret the term “official act,” citing constitutional, due process, and federalism concerns with the Government’s broad interpretation.

Former Virginia Governor Robert McDonnell and his wife Maureen were convicted on bribery charges in 2014. McDonnell was indicted earlier that year for accepting over $175,000 in gifts and loans from Virginia businessman Jonnie Williams, in exchange for performing certain “official acts.” McDonnell was charged and convicted on counts of honest services fraud and Hobbs Act extortion. During his jury trial, McDonnell requested an alternate jury instruction to define “official act” – an element of bribery that the Government was required to prove for a conviction. The District Court denied the instruction. Following his conviction, McDonnell filed motions to vacate the conviction and for acquittal, which the District Court denied. McDonnell appealed to the Fourth Circuit, which upheld the lower court’s decision.

In vacating the Fourth Circuit’s decision, the Supreme Court held that (1) to constitute an official act, a question or matter must involve a formal exercise of governmental power and must be something specific and focused that is pending or may by law be brought before a public official; (2) a typical meeting, call or event is not a question or matter; and (3) without something more, setting up meetings, hosting events, and calling upon other officials are not decisions or actions on questions or matters.

The Government argued for a broad interpretation of “official acts” under 18 U.S.C. § 201, which prohibits public officials from receiving or agreeing to receive anything of value in exchange for taking official action. Under the Government’s interpretation, “official act” would include nearly any activity by a public official. McDonnell argued that the “official act” should be limited to “those acts that ‘direct a particular resolution of a specific governmental decision’ or that pressure another official to do so.” The Court agreed that the statute required a narrower interpretation of “official act” as adopting the Government’s interpretation would open the door to “overzealous prosecution.” In a continuation of the precedent articulated in Skilling v. United States, the Court passed on an opportunity to invalidate the federal bribery statutes, opting instead to construe rather than condemn Congress’s legislative efforts.

That the McDonnell opinion was unanimous demonstrates the Court’s steadfastness in resisting the criminalization of ordinary politics - as distasteful and unseemly as that can often be. The Court understands that politics and politicians necessarily have associations with money, influence, and human relationships but also that the public often views those associations as inherently corrupt. However, politics and government could not function if government officials feared that any interaction with a constituent or donor could, in the eyes of a zealous prosecutor or cynical juror, merit a humiliating (and potentially politically motivated) investigation, or even imprisonment.

As it has attempted less successfully with the confluence of money and politics in the campaign finance context, the Court in McDonnell tried to clearly define what constitutes an official act - so that politicians can objectively understand the difference between special attention given to a donor or constituent and conduct that crosses the line into criminal behavior. The Court recognized that conscientious public officials arrange meetings for constituents, contact other officials, and include them in events all the time. In McDonnell, the Court struck a balance between fighting government corruption on the one hand and on the other hand respecting liberties such as the right to petition government for redress of grievances and the right to associate with others to speak on the salient issues (and candidates) of the day. That it did so unanimously, on a case involving conduct that was “distasteful” and “tawdry,” underscores the Court’s resolve that politics remain in the arena of persuasion, rather than litigation.

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume VI, Number 179


About this Author

D Michael Crites, white collar criminal defense lawyer, Dinsmore Shohl, law firm

D. Michael Crites’ practice focuses exclusively on white collar criminal defense and complex business litigation. As the former United States Attorney for the Southern District of Ohio and an Assistant United States Attorney for the Southern District of Ohio, he has years of grand jury and litigation experience in federal court and regularly litigates and negotiates global settlements of criminal, civil and regulatory matters on behalf of corporations and businesses throughout the United States. He also serves as Special Counsel to the Ohio Attorney General.

Bill Hunt, White Collar Crime Practice Group lawyer, Dinsmore Shohl law firm
Of Counsel

Bill Hunt is a member of the White Collar Crime Practice Group. He has more than 30 years of experience handling white collar criminal matters.

Bill represents businesses and individuals in criminal, civil, and regulatory disputes with the federal government.  He has experience litigating matters involving financial fraud, tax fraud, wire fraud, money laundering and regulatory violations.  In addition, Bill manages and conducts internal investigations for corporations needing outside counsel.  A former federal prosecutor, Bill has decades of grand jury and federal trial experience, and has tried federal criminal cases in all three sites of court in the Southern District of Ohio.  He has appeared in the Sixth Circuit Court of Appeals in criminal cases on numerous occasions.   As the Criminal Chief of the U.S. Attorney’s Office Bill was responsible for all criminal litigation in the Southern District of Ohio.   In addition, he has served as First Assistant U.S. Attorney, and Acting U.S. Attorney.   Bill is also a former officer and military judge in the U.S. Marine Corps.

Eric Lycan, Dinsmore Law Firm. Transactional Policy Attorney

Eric Lycan represents clients including statewide chambers of commerce, industry trade associations and citizen groups in making their voices heard by policymakers. He advises clients on political advocacy and compliance, including First Amendment issues, campaign speech, and formation of PACs, “Super PACs”, issue advocacy organizations and other entities. In addition to his practice counseling clients on compliance with campaign finance and election laws, Eric has extensive experience with complex litigation business disputes and appellate matters.

Eric was...

Andrew Kirkner, Dinsmore Law Firm, Administrative Litigation Attorney

Andrew is a member of the Corporate Department focusing in the areas of government relations and civil and administrative litigation. Andrew is a registered lobbyist with experience representing property and casualty insurance and Medicaid managed care clients before the West Virginia Legislature. He has drafted legislation and amendments, lobbied, and testified before committees of the Legislature on behalf of the firm’s clients. Andrew also maintains a litigation practice before West Virginia’s trial courts and administrative agencies. He has worked on cases involving...

Arryn Miner, Dinsmore Law Firm, Commercial Litigation Attorney

Arryn is a member of the Litigation Department, focusing on commercial litigation matters. She gained valuable litigation experience serving as an extern for the Hon. James L. Graham in U.S. District Court for the Southern District of Ohio, where she drafted a variety of legal opinions and judgments, as well as handling research and analysis of legal opinions and precedents.