First and foremost let me note: it has always been illegal to accept a gift in exchange for a government action. This has been Virginia law and Federal law for as long as anyone can remember. Second, there is no doubt that what former Gov. McDonnell did when he and his Wife, while serving as Governor, accepted $177,000 of gifts from a “friend” named Johnnie Williams was improper, created an appearance of impropriety, is not condoned by any Virginia Delegate or Senator, and never should have been done. And certainly the Prosecutors should have investigated it. This behavior was outrageous. But the question posed by the U.S. v. McDonnell case is: Was it illegal?
From the time the Governor was charged until present, I and a number of my colleagues have stated that since Johnnie Williams never received anything other than a meeting with the Secretary of Health and Human Services, acceptance of the gifts were not illegal. And now, 100% of the U.S. Supreme Court agrees with our position.
To state our position succinctly, in order to have a “bribery” / “denial of honest services” conviction, one person has to give something of value (the bribe) and the government official has to give something of value (an “official act”). Johnnie Williams never received anything of value. The Governor set him up with a meeting. While the U.S. Attorney General and the trial Court Judge said that setting a meeting qualifies as an “official act” / something of value, this cannot be the standard – otherwise nearly every routine duty a public official does every day activity is a felony.
To gain some perspective, here is the jury instruction that the U.S. Attorney convinced the Trial Judge to give. The Judge instructed the jury that if they found that the Governor received the gifts (which totaled $177,000 in value), and if they found that he gave Williams an “official act” in exchange, then the Governor would be guilty of violation of the “bribery” / “honest services” law. I italicized some key elements to draw your attention to them:
In other words, official actions may include acts that a public official customarily performs, even if those actions are not described in any law, rule, or job description. And a public official need not have actual or final authority over the end result sought by a bribe-payer so long as the alleged bribe-payer reasonably believes that the public official had influence, power or authority over a means to the end sought by the bribe-payer. In addition, official action can include actions taken in furtherance of longer-term goals, and an official action is no less official because it is one in a series of steps to exercise influence or achieve an end.
So the U.S. Attorney and the Trial Judge believed that an “official act” can be: (1) an act that is not in any law, rule or job description, (2) an act to acquire something that a public official does not have the authority in the end to deliver, (3) an act that the public official does not even know the bribe payer is seeking, and (4) an act that is just one step in a series of steps to eventually obtain what the bribe payer wants. This standard makes nearly everything a government official does every day a felony.
Under this standard, if it is illegal to set up a meeting for $177,000 then it is illegal to do it for $17.77. Picture this: I, in my capacity as a Delegate, go to a Rotary Club breakfast and eat $17.77 in eggs, pancakes and coffee. During that meeting a Rotary member says, “Delegate Albo, my license was suspended because of lack of insurance, and I know I have insurance.” I respond, “I know what is going on. The DMV and the insurance company are not communicating. Let me set you up with a meeting with DMV to fix it.” SLAM! Under this jury instruction, I would have just committed a Felony. I would have accepted a gift and I set up a meeting, even though (1) I had no idea that the “bribe payer” was seeking to bribe me, (2) there is “law, rule or job description” that I cannot set up meetings for people, and (3) I have no ability to work the DMV computers or tell the DMV to not suspend his license.
Here are a few other examples of the ludicrous effects of the jury instruction. A Delegate goes to the Fairfax INOVA Hospital Gala fundraiser, and receives $90 of food and listens to a band. 6 months later, INOVA asks him to vote for a budget amendment to fund cancer research. If he votes for it – SLAM, a Felony. A Delegate’s wife goes to dinner with her friends. Her friend says, “I will pick up the tab, you can get it next ‘girls night out.’” Unbeknownst to the wife or the Delegate, the friend’s husband works at a company who has a state contract. If the friend pays – SLAM, a Felony.
This is the reason that every single Supreme Court Justice ruled that the jury instruction was unconstitutional. They held that, “An official act … must involve a formal exercise of governmental power and must also be something specific and focused.” Chief Justice Roberts wrote: “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 governments’ boundless interpretation of the federal bribery statute. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption…”
Some have asked if the General Assembly will repeal the gift ban laws we put in place after the Governor was indicted. I highly doubt that. As I stated earlier, none of us think that what McDonnell did was proper. We did many things to put controls on gifts, but the most important point is that we added to the ALREADY existing law which stipulates that no public official can take a gift in exchange for an official government action. We did this by barring ALL gifts received by a public official or his/her family member from anyone other than a personal friend or family member > $100. We made exceptions for some things that should not be considered gifts, such as:
- Food or beverages consumed while attending an event at which the filer is performing official duties related to his public service
- Food and beverages received at or registration or attendance fees waived for any event at which the filer is a featured speaker, presenter, or lecturer
- Unsolicited awards of appreciation or recognition in the form of a plaque, trophy, wall memento, or similar item that is given in recognition of public, civic, charitable, or professional service
- Travel paid for or provided by the government of the United States, any of its territories, or any state or any political subdivision of such state
- Travel provided to facilitate attendance by a legislator at a regular or special session of the General Assembly, a meeting of a legislative committee or commission, or a national conference where attendance is approved by the House or Senate Committee on Rules.
For the full text of the gift ban laws go to: http://law.lis.virginia.gov/vacode/title30/chapter13/section30-100/