News Release

Supreme Court Rejects Government's Expansive Interpretation of "Official Act" Under Federal Bribery and Honest-Services Fraud Statutes; Vacates and Remands in Case of Former Virginia Gov. Robert F. McDonnell

Washington, DC (June 27, 2016) – In an opinion by Chief Justice Roberts, the U.S. Supreme Court today unanimously rejected the government’s expansive interpretation of what constitutes an impermissible "official act" under the federal bribery statute, the Hobbs Act, and the federal honest-services statute.

The government had alleged that "official acts" for the purposes of these statutes included merely arranging meetings, making introductions and hosting events in connection with the business interests of a constituent, Virginia businessman Jonnie Williams, from whom the McDonnells accepted loans, gifts and other benefits. Governor McDonnell, per the opinion, contended "that merely setting up a meeting, hosting an event, or contacting an official—without more—does not count as an 'official act.'" The Court agreed, holding that "[t]aking into account the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we reject the Government’s reading of §201(a)(3) and adopt a more bounded interpretation of 'official act.' Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an 'official act.'"

"Once again, it has taken the U.S. Supreme Court to remind prosecutors that they do not have a blank check to read all kinds of unintended, and overly broad criminality into vaguely worded statutes passed by Congress." said National Association of Criminal Defense Lawyers (NACDL) President E.G. "Gerry" Morris. "As NACDL argued it its amicus brief to the Supreme Court, criminal statutes should not permit the arbitrary criminalization of conduct without meaningful definition or limitation."

In today’s opinion, the Court made clear its concern about just how far this type of prosecutorial overreach can extend in such a context: "…conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse. This concern is substantial."  

NACDL’s amicus curiae briefs to the U.S. Supreme Court in McDonnell v. United States are available here (on the merits in support of the petitioner, filed March 7, 2016) and here (in support of the petition for writ of certiorari, filed Nov. 13, 2015). NACDL’s amicus briefs to the U.S. Supreme Court were authored by John D. Cline, Law Office of John D. Cline, San Francisco, CA, and Jeffrey T. Green, Washington, DC.

NACDL’s amicus curiae briefs to the U.S. Court of Appeals for the Fourth Circuit in United States v. McDonnell are available here (in support of appellant’s motion for bail pending appeal, filed Jan. 16, 2015) and here (in support of appellant and urging reversal, filed March 6, 2015). NACDL’s amicus briefs to the U.S. Court of Appeals for the Fourth Circuit were authored by John D. Cline, Law Office of John D. Cline, San Francisco, CA, and David B. Smith, Smith & Zimmerman, PLLC, Alexandria, VA.

A link to today’s Supreme Court opinion in McDonnell v. United States is available here.

For more information about NACDL’s extensive work in the areas public corruption and white collar criminal law, please visit http://www.nacdl.org/whitecollar. Information about NACDL’s work to combat overcriminalization is available at www.nacdl.org/overcrim.

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Ivan J. Dominguez, NACDL Director of Public Affairs & Communications, (202) 465-7662 or idominguez@nacdl.org for more information.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.