Fourth Circuit’s “Official Act”: Former Virginia Governor McDonnell’s Appeal Rejected

This guest post was authored by Ernest Holtzheimer, a summer associate with Montgomery McCracken.

Earlier today, a three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously upheld the conviction of former Virginia Governor Bob McDonnell on public corruption charges. We’ve previously blogged about how McDonnell’s public corruption conviction ended with a sentence of two years in prison for taking lavish gifts in return for helping a dietary supplement executive win business. On appeal, the former governor argued that the court’s jury instructions defined “official acts” too broadly such that “it would seem to encompass virtually any action a public official might take while in office.” McDonnell gained bipartisan support for this argument, with amici briefs signed by 44 former state attorneys general, two former U.S. attorneys general, attorneys for the past five presidents, the Republican Governors Association and prominent legal scholars. McDonnell also argued inter alia that the evidence against him was insufficient, that his trial should have been severed from his wife’s, and that the judge’s questioning of prospective jurors was insufficient given the pretrial publicity.The Court disagreed and found that the government evidence “demonstrated a close relationship between official acts and the money, loans, gifts and favors.” The court said that, “the jury could readily infer that there were multiple quid pro quo payments, and that (McDonnell) acted in the absence of good faith and with the necessary corrupt intent.” Judge Stephanie Thacker wrote the opinion for the court and stated that the former governor “failed to sustain his heavy burden of showing that the Government’s evidence was inadequate.” The Court concluded that McDonnell “received a fair trial and was duly convicted by a jury of his fellow Virginians.”

Given the prominence of former Governor McDonnell, the case has garnered significant media attention. The legal significance, however, may prove to be much more lasting, as the Court clarified – or, perhaps, expanded – the scope of what is an “official act” and the proper “quid pro quo” jury instruction.

 

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