Analysis

When a government criminal case looks like it may collapse from more than one legal weakness, maybe the only challenge to the Supreme Court is to pick the one that limits the damage for prosecutors.   That was the prospect on Wednesday as the Court — in the final hearing of the current Term — spent an hour pondering ways that it could scuttle the high-profile public corruption verdict against former Virginia governor Robert F. McDonnell — as he and his wife sat silently in the second row of spectators.

With Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Anthony M. Kennedy energetically taking apart the verdict — and, with it, the laws used by the prosecution — the prospect of imminent prison for McDonnell appeared to have visibly lifted.  At a minimum, a new trial for him seemed in store, but there also was a more significant chance that the Court would make it considerably harder to build a new case against him and, in general, to prosecute other public officials for doing favors for benefactors.

Although the Chief Justice seemed to suggest at one point that the corruption theory used against McDonnell might actually be found to be too vague to satisfy the Constitution, most of the effort that he and his colleagues made was in the search for a “limiting principle.”  If one were not found, Justice Breyer suggested, nearly every politician could be put at legal risk and the executive branch would be turned into the morality superintendent of political life in America.

Justice Clarence Thomas said nothing during the argument, but the other seven were actively engaged.  And, by the end of the hour, it was difficult to find any Justice willing to come willingly to the prosecutors’ defense.  (Justice Sonia Sotomayor might have been the exception, but even that was not clear.)  It turned out, in fact, to be a very tough day for Deputy U.S. Solicitor General Michael R. Dreeben, who tried to “push back,” as he put it, but appeared to be drawing little support.  (It was Dreeben’s one-hundredth argument before the Court, which the Chief Justice noted with thanks in brief remarks as he called Dreeben back to the lectern.)

McDonnell’s lawyer, Washington attorney Noel J. Francisco, had to work his way through a wide variety of hypothetical scenarios proposed by the Justices as they sought to understand the evidence used against McDonnell, and why that might — or might not — add up to a crime.  But, the longer Francisco stood at the lectern, the more promising his challenge seemed.  (Francisco, in his one moment of obvious discomfort, mistakenly referred to Justice Ruth Bader Ginsburg as “Justice O’Connor,” something that Ginsburg wryly noted had not happened “in quite some time.”  Francisco tried hard to apologize.)

McDonnell was convicted of corruption in the form of multiple charges of performing “official acts” as governor, in return for money, loans, expensive gifts and outings from Virginia businessman Jonnie R. Williams — who, prosecutors said, did all of those favors for the governor in return for the governor’s help in arranging contacts in state government who could advance Williams’s business product, a health supplement made from tobacco leaves.

The ex-governor was sentenced to two years in prison — a sentence that the Court has delayed while it reviews his appeal.  His wife, Maureen, also was convicted of similar charges, and has been sentenced to a year and a day in prison.  She has an appeal that is now on hold at the U.S. Court of Appeals for the Fourth Circuit.  If McDonnell’s appeal is successful in the Supreme Court, she, too, could benefit from that.

At the center of McDonnell’s challenge is whether he performed any “official acts” on behalf of Williams’ interests in return for all of the largesse provided for the governor, his wife, and their family.

It was that single phrase, “official acts,” that was the target of the most skeptical of the Justices on Wednesday.  Justice Kennedy ridiculed it as reaching even a janitor who took a bottle of beer for doing some extra cleaning in an office.  Justice Breyer said it was so open-ended that no member of Congress could ask any government official to look into the private matter of interest for a political donor.  Chief Justice Roberts marveled at the “extraordinary” fact that a bevy of former White House staff lawyers who had served several presidents submitted an amicus brief warning of the dreadful consequences for democracy if the McDonnell verdict stood.

Justices Ginsburg and Elena Kagan spent most of their time trying to work their way through the specifics of the evidence in the case, but there was little in their remarks that would please prosecutors using such evidence to prove illegal bribery or corruption.  There was nothing in a few questions from Justice Samuel A. Alito, Jr., to suggest that he would support the McDonnell verdict.

McDonnell’s legal team wants, at a minimum, for the Court to overturn the verdict and set the stage for a new trial at which the judge would be under orders to narrow, significantly, the kinds of actions by a governor that serve as  valid evidence of bribery or extortion.  The jury instruction the defense lawyers most want is that a governor or other elected official does not commit either of those crimes unless he or she takes money or something else of value in return for actually using government authority to influence an outcome favorable to a benefactor.   But even Francisco’s attempt to spell out what instructions he wanted on “official acts” did not seem adequate, or sufficiently limiting, to Breyer or Kennedy.