In the Courts

First, the Court held that a “'question' or 'matter' must be similar in nature to a 'cause, suit, proceeding or controversy” and “[b]ecause a typical meeting, call, or event arranged by a public official is not of the same stripe as a lawsuit before a court, a determination before an agency, or a hearing before a committee, it does not qualify as a 'question' or 'matter' under ' 201(a)(3).” The Court further considered whether McDonnell's behavior qualified as a “decision” or “action,” and relying on Supreme Court precedent, found that it did not, as “[s]etting up a meeting, hosting an event, or calling an official (or agreeing to do so) merely to talk about a research study or to gather additional information ['] does not qualify as a decision or action on the pending question of whether initiate the study.”

Second, the Justices discussed the “significant constitutional concerns” that the Government's “expansive interpretation” of “official act” may trigger. The Court posited that an overly broad definition of “official act” could dissuade public officials from interacting with private citizens and corporations for fear of being indicted for corruption in the exercise of routine duties. In his opinion, Chief Justice Roberts wrote: “The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns ' whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government's position could cast a pall of potential prosecution over these relationships ['] Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.” While the Court cautioned that McDonnell's acts did not amount to routine political discourse, it was unwilling to “construe a criminal statute on the assumption that the government [would] 'use it responsibly.'”

McDonnell also argued that the jury instructions defining “official act” were improper, and the Court agreed, finding that the “instructions lacked important qualifications, rendering them significantly overinclusive.”

The decision may also impact several other high-profile corruption cases currently on appeal, including the case against McDonnell's wife, who was convicted of public corruption in 2014 alongside her husband.

In the Courts and Business Crimes Hotline were written by Colleen Snow, an Associate at Mayer Brown, Washington, DC.