One of the highest-profile political corruption cases in years will soon be on its way to the Supreme Court.  Lawyers for former Virginia Governor Robert F. McDonnell told a federal appeals court on Thursday that they will be taking his corruption case on to Washington and want him to be allowed to stay out of prison until the Justices act.  He has been free under an earlier court order after a federal jury in Richmond found him guilty of eleven criminal fraud counts, and the trial judge sentenced him to two years in prison.

In the new filing in the U.S. Court of Appeals for the Fourth Circuit, McDonnell’s legal team said it would ask the Court to review two questions of major importance in cases bringing public corruption charges: what kind of official action must follow a request to an officeholder for a favor, and whether the trial judge in this case failed to ask potential jurors if they had made up their minds about guilt based on the massive publicity that surrounded the case before the trial.

The former governor, once considered a rising prospect for national leadership among Republicans, was convicted last September, and the Fourth Circuit upheld his conviction in July.  His wife, Maureen McDonnell, was also convicted of corruption charges; she was sentenced to a year and a day in prison.  The Fourth Circuit has not yet ruled on her separate appeal.

The core of the federal prosecutors’ case against the ex-governor was that he had engaged in fraud in using his official position to do official favors for a Richmond businessman, Jonnie Williams, who headed a company that developed a dietary supplement from a substance found in the tobacco plant.  The jury found that the governor did perform “official acts” for Williams in the businessman’s attempt to get a state laboratory to test the usefulness of the supplement to treat chronic inflammation.

Last January, the Fourth Circuit allowed McDonnell to remain free while he appealed to that court.  In the new filing on Thursday, his lawyers asked the court of appeals to keep that release order in effect until the Supreme Court acts on the review plea that they expect to file.   The ex-governor, his attorneys contended, “remains neither a flight risk nor a threat to public safety.”  The Fourth Circuit had accepted those arguments in allowing him to stay out of prison during his initial appeal.  It also agreed, as his lawyers continued to argue, that his case does raise substantial legal issues about public corruption prosecutions.

As an alternative to an extension of the appeals court’s release order, McDonnell’s counsel suggested that the case be sent back to the trial judge in Richmond “with directions to delay any reporting date” to prison until the Supreme Court acts on his plea for review, and to further delay if the Justices were to take on the case for full review.   The attorneys told the appeals court that federal prosecutors from the Justice Department will oppose his request to remain free in the meantime.  Until the Fourth Circuit acts on his new plea, he will remain free.

In summing up the questions that they will be asking the Supreme Court to answer, the ex-governor’s attorneys wrote: “The questions presented raise important, high-profile issues of constitutional dimension; implicate political conduct that occurs routinely across the country; garner the attention of scores of amici, including bipartisan state and federal officials; divide the courts of appeals, and expose clear tensions in Supreme Court precedent,” including Supreme Court rulings in campaign finance cases that significantly narrowed what the Justices regard as public corruption.

His lawyers predicted that the Court might act on his coming petition by next March, and they noted that, if he does not remain free in the meantime and the Court agrees to hear his case, he would have served more than one-fourth of his sentence, and might have to serve the entire sentence before a final ruling came down after full Supreme Court review.   Normally, if the Court does not grant review in a case until March in any given term, it normally would go over to the following term for argument and decision.

He should not have to go to prison before he has a fair opportunity to seek review by the Justices, his attorneys contended.

His lawyers have ninety days to seek Supreme Court review, dating from last Tuesday, when the full Fourth Circuit refused to rehear his case.  Eight of that court’s active judges refused rehearing, while seven judges disqualified themselves from voting on the issue, without giving reasons.  It would have taken a majority of all active judges to agree to a full court rehearing.

 

 

 

Posted in McDonnell v. U.S., Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Virginia ex-governor’s corruption case on way to Court, SCOTUSblog (Aug. 14, 2015, 10:48 AM), http://www.scotusblog.com/2015/08/virginia-ex-governors-corruption-case-on-way-to-court/