Justices appear to lean in McDonnell’s favor
Breyer, Kagan join conservatives in worrying about criminalizing politicians’ standard favors to donors.
Former Virginia Gov. Bob McDonnell had a surprisingly strong outing at the Supreme Court on Wednesday, as the majority of the court appeared to lean in the direction of overturning the corruption convictions a jury returned against him two years ago.
Two members of the court’s liberal wing — Justices Stephen Breyer and Elena Kagan — expressed serious concerns that the government’s stance could expose public officials to prosecution for all kinds of acts routinely performed for political donors. Breyer appeared particularly troubled that upholding the convictions would shift too much power to federal prosecutors.
“My problem is criminal law as the weapon to cure it," Breyer said. “This is a very basic separation of powers problem for me.”
Breyer said the government’s position would open public officials to the possibility of prosecution every time they are taken to lunch by constituents and then make inquiries or send a letter on their behalf.
“If that’s going to criminalize that behavior, I’m not buying into that, I don’t think,” he said. “That is a recipe for the Department of Justice and prosecutors to wield enormous power over elected officials.”
With three conservative justices on the shorthanded court expressing similar worries, McDonnell seemed to stand a good chance of getting a ruling in his favor and avoiding the two-year prison sentence he is facing.
Justice Anthony Kennedy said he didn’t think relying on juries to separate the cases of corruption from those that aren’t was much of a safeguard.
“You’re telling the senators, the officials who are having a lunch, ‘Don’t worry. A jury has to be convinced beyond a reasonable doubt and that’s tough.’ That’s your answer?” Kennedy said skeptically.
A jury convicted McDonnell on 11 corruption-related counts in 2014 after he and his wife took more than $175,000 in gifts and loans from a Virginia businessman seeking state studies of a tobacco-based dietary supplement. The charges included “honest services” fraud, extortion and conspiracy. The government said McDonnell’s largesse from businessman Jonnie Williams was part of a corrupt deal to advance the businessman’s interests.
During a five-week trial, prosecutors said McDonnell repeatedly intervened on Williams’ behalf, sending messages encouraging state university researchers to conduct trials with the product and staging a product launch at the governor’s mansion. The prosecution maintained the help was a “quid pro quo” or trade for the gifts from the businessman, while the defense insisted there was no connection and the governor would have provided similar help to any Virginia business.