Supreme Court May Be Leaning Toward Voiding Ex-Va. Governor's Corruption Conviction : The Two-Way The core issue is how to determine a clean "official act" from a corrupt one, and where the line is. Oral arguments underscored how difficult it is to come up with a workable standard.
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Supreme Court May Be Leaning Toward Voiding Ex-Va. Governor's Corruption Conviction

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Supreme Court May Be Leaning Toward Voiding Ex-Va. Governor's Corruption Conviction

Supreme Court May Be Leaning Toward Voiding Ex-Va. Governor's Corruption Conviction

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KELLY MCEVERS, HOST:

At the U.S. Supreme Court today, justices appeared to be ready to throw out the conviction of former Virginia Governor Bob McDonnell on corruption charges. It's a step that federal prosecutors have warned could crippled their ability to bring crooked politicians to justice. NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In an era when the public is suspicious of political insiders, it was odd today to see a majority of Supreme Court justices apparently less worried about a pay-to-play system of government and more worried about the possibility that prosecutors would target routine political activity. At issue was the jury conviction of former Virginia Governor Bob McDonnell on corruption charges, namely accepting $120,000 in undisclosed loans and tens of thousands of dollars in luxury gifts in exchange for using his influence as governor to help his benefactor Johnnie Williams.

Williams' company had developed a dietary supplement that would've been worth much more if it were approved as a pharmaceutical by the FDA. Winning that approval, however, required expensive clinical testing, and Williams couldn't afford it, so he wanted the research conducted instead by two prestigious Virginia universities. And he enlisted McDonnell's help.

At the same time, McDonnell and his wife were soliciting and receiving loans and gifts from Williams, the governor was ordering top health officials to meet with Williams, hosting a luncheon at the governor's mansion to lunch Williams' product and setting up contacts for Williams with university faculty members.

Ultimately, though, the medical faculty resisted doing the research, and a jury convicted McDonnell of using his office for corrupt purposes. McDonnell, whose prison sentence is on hold pending the outcome of his appeal, was at the Supreme Court today.

(SOUNDBITE OF ARCHIVED RECORDING)

BOB MCDONNELL: Never during any time in my 38 years of public service have I ever done anything that would abuse the powers of my office.

TOTENBERG: Inside the court chamber, his lawyer, Noel Francisco, urged the justices to reverse the conviction because the trial judge did not adequately define what official actions McDonnell took in exchange for Williams' largess. The line between what's legal and illegal, he said, is a line between granting access to decision makers versus actually influencing their decisions.

But that line soon looked blurry as the justices peppered Francisco with hypotheticals. Justice Alito - could a governor offer access to a staff meeting for a price? Answer, yes - to make it criminal, there has to be some official government act. In this case, said Francisco, all the government did was to make a referral, and that does not cross the line.

That depends on who's making the referral or the call, said Chief Justice Roberts. If a congressman makes the call, that's no big deal, but if the president asks for a matter to be looked at for a constituent, that might have considerably more influence.

The Justices reserved their really aggressive questioning, however, for the government's advocate Deputy Solicitor General Michael Dreeben. Dreeben opened by asking the court to consider the consequences of the defense's, quote, "pay-to-play theory of government" - in essence that it's perfectly legal to pay for access.

Justice Breyer - but if we allow the criminal law to go as far as you want, the Department of Justice will become the ultimate arbiter of how public officials are behaving in the United States, and giving that kind of power to a prosecutor is dangerous. So we need limits on both sides even though the line won't be perfect and will fail to catch some crooks. Chiefs Justice Roberts was even more draconian, suggesting that perhaps the main federal anticorruption laws are inherently so broad as to be unconstitutional.

The government's Dreeben reacted with uncharacteristic fury. It would be absolutely stunning if this court said that bribery and corruption laws which have been on the books since the beginning of this nation, have been consistently enacted by Congress - interrupted Justice Kennedy - absolutely stunning to say that the government has given us no workable standard? We've given you a workable standard, replied Dreeben, based on this court's decisions dating back to 1914 and going up through current times.

But at the end of the day, only Justice Sotomayor, a former prosecutor, and Justice Ginsburg seem to be buying the government's argument. Nina Totenberg, NPR News, Washington.

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