Former Virginia Gov. Bob McDonnell got into legal trouble for accepting gifts from a supporter, but he now may be kept out of jail thanks to a gift from the Supreme Court.
Liberal and conservative justices alike expressed deep concern Wednesday that the government went overboard in prosecuting the disgraced Republican politician, once a rising star in the party.
Justices grilled Assistant Solicitor General Michael Drebben during the oral arguments in McDonnell v. U.S. regarding the government's case that the governor committed five "official acts" on behalf of a donor that constituted bribery.
McDonnell's lawyers have argued that they were not in fact official acts because they did not show the governor changing state policy or pressuring others to do so.
The governor was convicted in 2014 of 11 corruption charges related to accepting more than $100,000 in gifts from a Virginia businessman, Jonnie Williams, who wanted state universities to conduct testing of a dietary supplement he had developed. The testing was needed for Food and Drug Administration approval, but the universities never took it up.
McDonnell's case hinges on whether merely providing Williams with access to government officials in exchange for money and gifts was corrupt even though the governor did not require any Virginia official to help Williams.
Most of the justices seemed disturbed by the definition of "official act" used by the government in the case, seeing it as lacking any "limiting principle" that would keep prosecutors in check.
Liberal Justice Stephen Breyer expressed the strongest skepticism, often sounding frustrated with Drebben. Breyer seemed particularly disturbed by the government's refusal to draw a clear line on what constitutes "quid pro quo" bribery.
"What is the lower limit, in the government's opinion, on the quid? Tell us right now," Breyer said.
Drebben responded that accepting McDonnell's team's argument would send the wrong message about money and access to government officials.
Breyer bluntly said he didn't care.
"You say it sends the wrong message in a case like this. I am not in the business of sending messages. I am in the business of figuring out the proper mechanisms of government," Breyer said.
Justice Elena Kagan, another liberal justice, noted that one of the official actions the government cited was holding an event at the governor's mansion, something she said was "essentially hosting a party" and inviting the donor to it.
"I'm troubled by these charges," Kagan said.
The conservative justices were no less skeptical. "What we are looking for is a limiting principle," Justice Samuel Alito said.
Only liberal Justices Ruth Bader Ginsburg and Sonya Sotomayor seemed sympathetic to the government's case.
Much of the case revolved around the question of whether a government action involved an exercise of power by an official.
Noel Francisco, the attorney representing McDonnell before the court, argued that it had to. Merely making a request to another official to hear someone out did reach that level, he argued.
Breyer seemed to agree, pointing to his prior experience working in the Justice Department's antritrust division. "We would get many, many letters [from lawmakers] saying, 'Can you look into this?' We knew the senator just wanted to say to the constituent, 'We tried,'" Breyer said.
McDonnell, once one of the GOP's rising stars, was indicted in January 2014, shortly after he left office, after revelations of his dealings with Williams. The governor's wife, Maureen, who was convicted on eight counts of corruption in 2014, was particularly close to Williams, regularly requesting money and favors from him.
Among other indulgences, Williams provided the couple with paid golf outings, use of his Ferrari sports car and bought airline tickets for two of the McDonnells' daughters to go to a bachelorette party in Savannah, Ga. When Maureen McDonnell requested a Rolex watch for her husband with "71st Governor of Virginia" engraved on it, Williams complied.
McDonnell did boost Williams' dietary supplement, holding a launch party for it at the governor's mansion and even recommending it to the state official who oversaw the state health plan.
However, Williams ultimately did not get much from his investment in McDonnell. The state universities never took up the testing and Anatabolic was never included in the state health plan. Even the Justice Department's own brief to the Supreme Court describes Williams as "furious" over the lack of action.