Virginia Republican Gov. 's career ended in disgrace, undone by revelations of accepting gifts from a wealthy donor and tackily shilling for his products in return. But were McDonnell's actions corrupt as well? That's the question the Supreme Court will address on Wednesday when it hears oral arguments in McDonnell v. U.S.
The case has attracted considerable attention from legal experts and government watchdog groups because it delves into the question of what exactly an official must do for his actions to be defined as "corrupt." The case could have a major impact on future corruption prosecutions.
"There are bigger issues at stake here [than McDonnell's own case]. The Supreme Court has watered down a lot of anti-corruption statutes in recent years," said Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington, a nonprofit group that has filed a "friend of the court" brief in the case.
McDonnell was convicted in 2015 on 11 counts of fraud, extortion and conspiracy for accepting about $100,000 in private gifts from a donor, Virginia businessman Jonnie Williams.
In his Supreme Court brief, the former governor argues that his convictions should be overturned because, while he took the money, he never engaged in any "official act" as governor on Williams' behalf. All he did, he argues, is schmooze with a donor.
"This prosecution is unprecedented. It hinges on a novel, sweeping theory that puts every public official at the mercy of federal prosecutors," McDonnell's lawyers argue.
The Justice Department has countered that McDonnell did indeed engage in such overt acts, but has added that even if he didn't that would be "irrelevant" to the corruption convictions.
"As the court held, and as the jury was instructed, 'it was not necessary for the government to prove that [petitioner] actually took [an] official action,'" the agency argued in its Supreme Court brief.
David Debold, a partner at the Washington law firm of Gibson, Dunn & Crutcher, says the case comes down to the question of what is an "official act."
"The real issue was in the quid pro quo — what is the 'quo' here?" he said.
Williams gave the money to McDonnell in 2011-12 as part of an effort to promote a dietary supplement he was backing called Anatabolic. He wanted Virginia medical schools to do testing of it as part of an effort to get FDA approval.
McDonnell did help to promote it, including holding a launch party for the product at the governor's mansion to attract interest from researchers at the University of Virginia and Virginia Commonwealth University. McDonnell even recommended the product to the official who oversaw the state health plan.
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.
However, Williams 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 describes Williams as "furious" over the lack of action.
Nevertheless, the Justice Department argues that merely setting up meetings and talking to other officials amounted to official acts. That is, the attempt to influence policy was itself sufficient. The agency further notes that the money involved was not campaign contributions but private gifts that went directly into the pockets of McDonnell and his wife.
The governor's court brief argues that the fact that nothing happened to benefit Williams undermines the government's case. "Gov. McDonnell had authority to order what Williams wanted. He never did. Nor did he 'urge' or 'recommend' that others make decisions favoring Williams," his brief argued.
Some political organizations are backing McDonnell. The Republican Governor's Public Policy Committee argued in a friend of the court brief that the case defined corruption as facilitating a constituent's access to other state policymakers, calling it "conduct that is extraordinarily commonplace."
That's an outrageous stance, Bookbinder says. "McDonnell seems to be making the argument that getting paid for access … is not only 'business as usual' but a constitutionally protected right," he said.
What the justices will make of the case is anybody's guess since the facts don't fall along usual partisan or ideological lines. Law-and-order conservatives such as Justice Samuel Alito may be tempted to uphold the convictions, Debold said, but they also have been willing to counter what they saw as law enforcement overreach in the past. The court's liberals have been more willing to uphold limits on political speech and actions.