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Will the Supreme Court Keep Convicted VA Governor out of Jail?

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By Casey C. Sullivan, Esq. on April 27, 2016 3:57 PM

The Supreme Court heard its final oral argument of the term this morning, and it was a fittingly weighty one: the case of former Virginia Governor Bob McDonnell. McDonnell was convicted on corruption charges in 2014, stemming from his relationship with a Richmond businessman who gave him nearly $200,000 in gifts and loans.

McDonnell currently faces two years in prison for public corruption, but he may end up going free without serving a single day, if today's oral arguments are any indication. A majority of the Supreme Court justices seemed ready to significantly limit, or maybe even strike down, the federal bribery statute used to convict the governor.

Everyday Political Favors or Explicit Corruption?

According to the government, Governor McDonnell illegally used his office to help Jonnie Williams Sr., a Virginia businessman, promote his dietary supplement, while he and his wife were showered with gifts and loans. McDonnell was convicted under the Hobbs Act, which makes it a felony to agree to take "official action" in exchange for something of value.

The question before the Supreme Court was whether McDonnell's favors, largely setting up meetings with important people, were "official acts" and how broadly prosecutors could define that term. Under the government's view, the governor's gift of access in exchange for gifts and loans was an illegal quid pro quo. According to McDonnell, the governor would need to have exercised influence, not just provided access, for the law to be violated.

Court Seems Skeptical of Corruption Law

The arguments did not go well for the government. Almost all the justice's seemed skeptical of the government's reading of the statute. Chief Justice Roberts suggested that the law could be unconstitutionally vague, failing to give political leaders notice of what is and is not permissible.

Justice Breyer, as well, was critical, saying that the law could give prosecutors too much power to define political corruption. Giving "that kind of power to a criminal prosecutor, who is virtually uncontrollable, is dangerous in the separation of powers since," he explained. The law would seem to require some sort of limiting principle, at the least, Justice Alito suggested.

And while Justices Ginsburg and Sotomayor showed some support for the government's position, even they did not appear to be fully on board.

After today, it seems likely that the law will be, at the least, substantially limited by the Court.

One Embarrassing Mistake for McDonnell's Team

Not everything went great for McDonnell's legal team, however. Noel Francisco, the governor's lawyer, was able to masterfully weave together hypotheticals that showed the weakness of the anti-corruption law. But he made one very embarrassing mistake.

When asked by Justice Ginsburg if limited the Hobbs Act would allow politicians to charge $1,000 for a meeting, Francisco said that other statutes would prohibit such acts.

Except, he addressed his answer to former Supreme Court Justice O'Connor, who retired ten years ago. "That hasn't happened in quite some time," Justice Ginsburg replied, laughing.

What Lies Ahead for the Governor?

The governor was present for the arguments, along with his wife, Maureen McDonnell.

The couple has reason to be excited, following today's showing. But even if the law is limited or struck down, that might not be the end of the story. McDonnell's team is seeking to have the Supreme Court overturn his conviction, setting the stage for a new trial under a much more limited understanding of bribery and corruption.

That's good news for the governor -- it certainly beats two years in jail. But it's also good news for his wife, who was convicted on similar charges and sentenced to a year and one day in prison. Her appeal is currently before the Fourth Circuit.

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