SCOTUS reversed McDonnell’s conviction


“If the court below determines that there is sufficient evidence for a jury to convict Governor McDonnell of committing or agreeing to commit an ‘official act,’ his case may be set for a new trial,” Roberts wrote. “If the court instead determines that the evidence is insufficient, the charges against him must be dismissed. We express no view on that question.”

Roberts added: “There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute.”   Washpost


I am surprised and pleased.  I expected that the court would divide on party lines and it did not.  The decision was unanimous.  Chief Justice Roberts made it clear in his opinion that although McDonnell and his wife, the lovely Maureen, are fools to have accepted favors from a Virginia businessman, the US government's overreach in trying to criminalize McDonnell's behavior was such a grab for power that it could not be tolerated.  pl

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43 Responses to SCOTUS reversed McDonnell’s conviction

  1. Fred says:

    I agree. The court was pretty clear: “Secondly, the government must prove that the public official made a decision or took an action “on” that question, matter, cause, suit, proceeding, or controversy, or agreed to do so, Roberts wrote.”.
    The WAPO however continues with the BS campaign: “made it harder to prosecute public officials for alleged wrongdoing.” Prosecution is easy, that’s what the feds did, prosecute. Justice however is not what the prosecutors were after in this case.

  2. Bill Herschel says:

    This found I on my tent this morning.
    He sheweth him a paper
    ‘Jockey of Norfolk, be not too bold,
    For Dickon thy master is bought and sold.’
    A thing devised by the enemy.
    Go, gentleman, every man unto his charge
    Let not our babbling dreams affright our souls:
    Conscience is but a word that cowards use,

  3. robt willmann says:

    The supreme court opinion today in McDonnell v. United States is interesting not only for its ruling, but also for the context of the procedure in a criminal case in which it occurred. The opinion is here–
    It starts on pdf page 6, after the syllabus (summary by the staff and not part of the opinion). The issue on which the conviction was reversed had to do with the wording in the jury charge, which is the paper given to a jury with the instructions to it that include what the law is that applies to the case, and the questions which the jury will answer by writing its verdict on the particular sheet of paper in the jury charge that applies to the particular question.
    Specifically, the defense for McDonnell objected to the definition of “official act” that was given to the jury in the jury charge. Starting in the middle of pdf page 16 to the end of page 17 (pages 11-12 of the opinion), you can see how the issue was created and preserved in the trial court for an appeal.
    From the middle of pdf page 26 to the top of page 27 (pp. 21-22), the court provides the new, interpreted, definition of “official act” that will apply to the criminal laws in question.
    Because the supreme court determined that the jury instruction was not written properly, and that the error in the wording was not “harmless”, McDonnell gets a new trial (you can lose on appeal through the “harmless error rule”, even in the face of a gross, obvious error in the trial). However, since there is now a new definition of “official act”, and the evidence at trial was not tested against that new definition, the supreme court said that the federal court of appeals is to check and see if the evidence is sufficient to support a finding of guilt under the new definition. If the evidence does not fulfill the definition, then he would be in essence not guilty. If the court of appeals thinks the evidence from the original trial was enough to find him guilty, then he still gets a new trial because the jury that convicted him was wrongly instructed.
    I find this part of the supreme court’s ruling odd, because if the court of appeals can say that the evidence at the original trial was enough to find him guilty under the new definition, then it will be reported in the press, which can poison and influence potential jurors in the community who might end up on the jury at a new trial. They will have heard that there was enough evidence to convict him the first time around with the new definition. Also, the Justice Department will be encouraged to retry McDonnell because the court of appeals said the evidence used before would be sufficient. And even worse, the trial court judge in a new trial would be stuck because even if he/she thinks that the evidence produced at a new trial is not sufficient under the new definition to prove a basic case, that judge would likely not direct a verdict of acquittal because the court of appeals said the earlier evidence was enough.
    Translated into English, the supreme court is allowing the court of appeals to say McDonnell should have been found guilty anyway, which will handcuff the trial court judge with regard to certain rulings in a new trial. This in turn will put the heat on McDonnell to agree to a plea bargain rather than standing up for a new trial with a new jury under the new definition of “official act”.
    The other side of the coin is that if the court of appeals says that the evidence at the first trial is insufficient under the new definition, then McDonnell is off the hook, and does not have to go through a new trial.
    You can now see that McDonnell’s fate is actually largely in the hands of a panel of three judges on the federal 4th Circuit Court of Appeals, located in Richmond, Virginia.
    The court of appeals decision after the original trial and before the action of the supreme court is here, and its finding that the evidence was sufficient to find McDonnell guilty is on pages 78-89–
    As a separate matter, a week ago, on June 20, the U.S. Supreme Court decided a case of equal importance, Utah v. Strieff, concerning the 4th Amendment, about which there has been little publicity, and it was not a good decision. The case is about illegally stopping and detaining a person, asking for an ID, running a warrant check, doing a search after a warrant for a parking ticket was discovered, and prosecuting the person for drug possession–
    The dissenting opinion by Judge Sotomayor clearly and candidly describes the practical effect of the ruling, and starts on pdf page 14. Judge Kagan also dissents at pdf page 26.

  4. BabelFish says:

    It was unanimous, which I find particularly heartening.

  5. HankP says:

    I don’t support any decision that makes legalized bribery even more normal and allowable than it is already. It looks like a pol now has to be successful in changing government policy to be prosecuted, just trying to steer stuff towards contributors isn’t enough.

  6. oofda says:

    Good points on the potential re-trial, if thee is one. As noted, it is up to the Fourth Circuit Court of Appeals.Stay tuned.

  7. BraveNewWorld says:

    Hopefully they take the same approach if the AGs start filing the RICO claims against any one that doesn’t tow the government line on global warming.

  8. MRW says:


  9. MRW says:

    Meantime, his life is destroyed.

  10. ToivoS says:

    I am wondering if this ruling will make it more difficult to prosecute Hillary Clinton for bribery in her acts as SOS benefiting donors to the Clinton foundation and those who paid honorarium to Bill Clinton. Somehow it always looked like this happened in that crazy Uranium deal that began with Kazakhstan and ended up with Russia buying a company that owns American uranium mines (Bill Clinton received a $700,000 fee for a speech in Moscow and Hillary gave State approval for the deal).

  11. Old Microbiologist says:

    HankP – I agree completely. This now provides a recipe for bribery through which a politician can (and will) be paid up front but if they only hint to a subordinate or other secret mechanism to influence politics then they are free and clear to get whatever and however much they can. It becomes difficult to prove cause and effect. This now makes it open season on bribes.
    I have always maintained that we need term limits and limits to incomes for politicians. I have always believed they should be paid by their states, for whom they actually work, and that the offices and space should be rented from the US government. Their salaries and perks should be a state matter entirely. Term limits will make it difficult to get fully integrated into the bribing system within 2 terms. I also believe that lobbying must be made illegal. The same for PACs etc. Campaign finance must be reformed but who will do it? They will never do anything to reduce the greed factor or reduce their incomes or political power.

  12. ked says:

    No harm / no foul is a fine moral code.

  13. LeaNder says:

    Fred as a rule felons over here don’t loose their right to vote. In some cases they can depending on the crime they committed. But as far as I know they loose it for a limited time only. I am no expert but I guess the argument is, it would hinder re-socialization. Beyond that there is a difference between active and passive voting right: be elected or vote. Thus, again I am no expert, they may not even loose it while incarcerated. Which I am sure horrifies you. 😉
    An obvious crime would be buying votes. Which helps us to circle back to corruption.
    I was curious who Tram Nguyen is, mainly since the name is familiar, in this case she spoke as co-executive director of this institution. Voting rights seem to be one of their basic issues.

  14. LeaNder says:

    “which can poison and influence potential jurors in the community who might end up on the jury at a new trial.”
    That’s an interesting argument, robt. Associatively: by now you have specialists for jury selection, who can easily sort out the ones that are influenced by media. One thing I witnessed in this context, you simply check the ways in which different media groups reported on the issue. You then only concentrate on the ones that help you to make your case versus the ones that may be more difficult to deal with based on media influence. To what extend can the prosecution challenge this increasing specialization??? To what degree do they cater to or allow themselves to be led by public emotion?
    More generally, there no doubt must be a reason for the “new rule”?
    I have to admit that I never took a closer look on comparative cases over here. Sometimes, though, and not because I am a Croesus, the sums involved bore me to tears. Or e.g. a “too good” loan to built a house, as seems to have been one factor in a recent case over here. Besides, if you look at it from an equal rights perspective: How do you deal with the fact that politicians are human beings too, while no doubt as a general rule they may have better chances to get some type of presents that may or may not only be given for a specific favor only. Beyond the more general gift rule … you give me a birthday present, in the expectation that I will also give you one. Now could there have been favors involved that had nothing to do with the political process? Wouldn’t you want to hide such gifts better?
    I am highly interested in corruption, a friend works in the field (organized crime, corruption). Among other things he told me about a German writing her thesis in the field of corruption. In this context, she studied cases all over Germany. To a not negligent degree she couldn’t get the files, for one or the other reason they were declared inaccessible for study.

  15. turcopolier says:

    McDonnell’s conviction was reversed UNANIMOUSLY by SCOTUS because he had violated no laws either federal or state. has Hillary violated no law? pl

  16. LeaNder says:

    Thanks Pat.
    I realized it, I also realized it surprised you.
    Concerning Hillary, I have never gone beyond the puzzlement why to use a private server for State business to start with.
    Recently I stumbled across some videos with short passages featuring the chairman, I understand, of some type of investigative group looking into matters in Libya. I have to admit that I was quite impressed by Trey Gowdy, well prepared and solidly argued.

  17. turcopolier says:

    Furthermore, McDonnell was prosecuted by the DoJ in the sure knowledge that he had violated no law. IMO this was actually prosecutorial abuse of power. “Some group” is a committee of the House of Representatives empaneled for the specific purpose of investigating the Benghazi incident for the purpose of improving diplomatic security overseas. their report was published today. pl

  18. Fred says:

    The issue was the coordination with political activists and zero notifications to those agencies that register voters. This is machine politics and not a moral issue of restoration of voting rights. The Governor could have accomplished this working with the legislature.
    “An obvious crime would be buying votes.”
    I believe none of these felons was imprisoned for vote buying. They did lots of other crimes.

  19. Fred says:

    “he had violated no laws either federal or state. ”

  20. LeaNder says:

    Sorry, Pat, for not looking up the correct term. It felt, I should. I have to admit, after I looked at it, there was only one thing on my mind. Hopefully it did not end yet with some type of case closed decision, but no, I didn’t look it up at the time:

  21. Ishmael Zechariah says:

    Col. Lang, SST
    Off topic but tangentially related. Apologies.
    tayyip reversed his course and has apologized to Russia. He also is trying to make nice with the izzies. The first case is a very public humiliation and is his first step back after a direct hit. The Turkish newspaper “Sozcu” headlines this as (translation): “Tayyip had to lick up what he spat”. His supporters in the nedia are downplaying the issue.
    Ishmael Zechariah

  22. LeaNder says:

    Fred, I get your point. Ill reflected activism may be just as annoying as activism employed by special interests. From the top of my head.
    On a recent thread I over-babbled, thus I won’t tell you what modified my possibly ill-reflected left approach to felons. Nutshell: I had to meet this one lady enamored with power and as I suspect pretty resistant to the multitude of psychological tools on offer in such a setting:

  23. LeaNder says:

    Point taken, while avoiding to get too deeply into my usual babbling private-experience pattern and/or experience that changed my semi-ideological outlook, although, as babbler I have to seriously control myself. 😉

  24. Alexandria says:

    McDonell’s conviction was a miscarriage of justice. Having worked for a governor and a President, I can say without hesitation that America is a “pay for access” democracy. It has always been thus. Donors make campaign contributions because they want to get in front of decision makers. Politicians remember who has given and who hasn’t. It is not a “quid pro quo” system, but they do try to help their “friends”. The system opens doors, but donors do not always get what they want. That is how I got towards the top of the queue in our political spoils system. The Supreme Court Justices recognize that this is the system, and has always been thus, because that is for the most part how they got their jobs.

  25. LeaNder says:

    sorry, I was distracted. I’ll study this more closely. Not that events in Libya aren’t important.
    random choice:
    “According to The Hill, the hearings provided a positive momentum for Clinton’s 2016 campaign, with her performance generating headlines such as “Marathon Benghazi hearing leaves Hillary Clinton largely unscathed” (CNN), and “GOP lands no solid punches while sparring with Clinton over Benghazi” (The Washington Post). Her campaign received a windfall of donations, mostly coming from new donors.[65]”
    can anyone tell me, if I am completely wrong that this committee, I should have at least used that term, triggered the larger Clinto-email-private-server issue. I have to admit that I was basically skeptical, when I stumbled across the committee, I guess, earlier on here.

  26. LeaNder says:

    Following you off-topic: I noticed both, IZ. But interesting development no doubt. Although concerning Russia, keeping to the same argument.
    A couple of members of the German government, I may get details wrong, recently were prevented by Tayyip to enter Turkey. They may have had the same more general idea to visit German troops in Incirlik. In any case, the German minister of defense is allowed to visit Incirlik now.
    The argument for the decision to not let the members enter, seems to have been the recent parliament decision on Armenia. More precisely calling it genocide. Would/Could have a more Kemalist government responded differently?

  27. ex-PFC Chuck says:

    I’m disturbed that the decision appears to reinforce the Citizens United notion that the only kind of corruption that counts is quid pro quo corruption. Larry Lessig, in his book “Republic, Lost” which was inspired by that decision, argues that clauses in Sections 6 and 9 of Article I of the Constitution should be read to prohibit what he calls “dependence” or “systematic” corruption in general, rather than only the specific manifestations of it that were pertinent two and a quarter centuries ago. By basing their decision only on the free speech clause of the First Amendment and not considering these other clauses relevant, the author argues that the Citizens United majority dropped the ball. In a brief reprise of the book I read several years ago I’m unable to find a succinct definition of “dependence corruption,” but as Lessig puts it: “the challenge [facing the framers of the Constitution] was to craft a government in which each department was sufficiently independent to protect itself against systematic corruption by another, and to protect the people against systematic corruption by the government. From that perspective, the important question is whether we could call deviation from that dependency [on the will of the people] ‘corruption’ . . In my view, the answer to this question is obviously yes. Dependence corruption is plainly corruption. It also plainly infects the political system for the same reason that quid pro quo corruption does.” (p 241-242) In an environment in which a lot can be conveyed by winks and nods and there are built in incentives to kiss up to the boss, I find it a stretch to believe that gifts of the size and type in this case won’t have an effect on some elected politicians, if not McDonnell.
    “Republic, Lost: The Corruption of Equality and the Steps to End It”

  28. Thomas says:

    Newcomer here SmoothieX12 has been giving a heads up recently that something major was coming down the pike and, I believe, these are the first steps that are being publically shown of what went down in private.

  29. observed says:


  30. Ishmael Zechariah says:

    Things are in flux in Turkey. Two bombs just went off and there is shooting in Ataturk Airport, the main one, in Istanbul. Something is happening. There will probably be an immediate news blackout. We will try to find out what we can and I will try to keep SST posted. Perhaps Kunuri can also help.
    Ishmael Zechariah

  31. observed says:

    Yes, this must be why certain campaigns have such contempt for those who consider corruption to be a higher morality way of life. They (HRC supporters come to mind) especially Dem to be saying, “what, after you crazy? Why do you want a *higher* ethical standards!”

  32. Tyler says:

    I thought Thomas’ dissent on the Texas Abortion case was pretty on point. He’s not kidding when he states that abortion has become this sanctified object that the usual rules do not apply to when it hits SCOTUS.
    SCOTUS hasn’t been about rule of law for a while, tho. More about carving out more special privileges for progressive pets.

  33. Thomas says:

    God bless friend.

  34. oofda says:

    Didn’t want to weigh in again, but I have to differ with the thought that the DoJ prosecuted McDonnell ‘in the sure knowledge that he had violated no law.’ That would have been an egregious breach of ethics. The case looked like corruption, at least it passed the test with a team of prosecutors- who are career DoJ people. And they don’t want to be tarred with a dodgy prosecution on their resume. The Court ruled against the instruction, which ventured into a fuzzy area of the law. So be it, sometimes the prosecution’s theory holds up-sometimes not.
    I hope no one is condoning what McDonnell and his wife did. Would a Virginia businessman promoting business that didn’t give the Governor a Rolex or the loan of a Ferrari get the same access? Virginia legislators tightened up the rules on gifts in the wake of McDonnell’s indictment- that means people thought something was wrong, if not illegal. I have had to investigate and deal with corruption and it is a corrosive force.

  35. turcopolier says:

    I lack your puritan enthusiasm for human perfection. I also have so much experience of mere DoJ lust for victory to agree with you. it is in fact the Department of Injustice. pl

  36. alba etie says:

    It was IMO worth noting that the Obama DOJ tried and convicted Congresscritter Chakah Fattah (D ) for multiple Fraud counts regarding campaign contributions ..

  37. Tyler says:

    Dead gay island wanting to be ruled over a chieftain. Go figure.

  38. LeaNder says:

    Ok, I somewhat avoided to look closer into this …
    However, since there is now a new definition of “official act”, and the evidence at trial was not tested against that new definition, the supreme court said that the federal court of appeals is …
    There is no “new” definition of “official act” it still is: 18 U.S. Code § 201 (a) 3. The Supreme Court does not follow the reading/interpretation of the earlier courts.
    Strictly already a lower court could have granted the plaintiff’s motion to modify the jury instruction. In which case the Supreme Court wouldn’t have needed to decide on the issue.
    What they did, they carefully documented chronology of events, gifts & loans versus limited activities by the governor to help his “noble donor” to reach his three central aims (Fourth Circuit opinion, pdf p. 30, second paragraph, document p. 25).
    But, these activities (earlier usage of “offical acts”) never rise to the necessary “official act” (Supreme Court), in layman’s terms McDonnell doesn’t “misuse” his power as governor. He only facilitates encounters with the respective doorkeepers, who in turn are fully free to decide on the issues at hand. Apparently, they weren’t convinced and didn’t feel pressured to do anything by McDonnell, but were free to decide against the “generous man”. Mind you had the briber reached his aims, the gifts and loans would have resulted in gains much, much, much higher then his “investment”. Gambled and lost?
    I only recall a this hearsay assessment suggesting political pressure:
    A UVA employee in the university research office, who had never spoken with the Governor about Anatabloc, testified that she wrote a pro/con list concerning research studies on Anatabloc. The first “pro” was the “[p]erception to Governor that UVA would like to workwith local companies,” and the first “con” was the “[p]olitical pressure from Governor and impact on future UVA requests from the Governor.” Id., at 4321, 4323 (Sharon Krueger).
    Probably the result of this, quite stark, or funny if you like:
    The guest list for the event included researchers at the University of Virginia and Virginia Commonwealth University. During the event, Star Scientific distributed free samples of Anatabloc, in addition to eight $25,000 checks that researchers could use in preparing grant proposals for studying Anatabloc. Governor McDonnell asked researchers at the event whether they thought “there was some scientific validity” to Anatabloc and “whether or not there was any reason to explore this further.” Id., at 3344.
    It’s not the governor directly exerting pressure here. You can blame McDonnell for allowing something like this to happen in his house, but, as we know, he was a bit in a fix, and may even a bit surprised, or embarrassed. Swiftly jamming verbally on the legal brakes.
    And now I read it all. Good bye. 😉

  39. Babak Makkinejad says:

    I think communists also shared in this idea of human perfectibility; aiming for the “Communist Man”.
    I suspect this was a common inheritance from the Enlightenment Tradition.

  40. bt says:

    I also agree.
    This decision, along with rulings like Citizen’s United are creating an environment where wealthy people and corporation can effectively purchase the government. This has always been going on, but now they don’t even have to hide it.
    Similar / related decisions granting “personhood” to corporations and “religious rights” to businesses are equally troubling. The wealthy are pouring billions into our elections and they don’t need to disclose the expenditures and who they are supporting, so you can’t even follow the money for the quid pro quo. The government is more or less being taken over by the wealthy.
    Not good at all.

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