The Supreme Court granted an emergency motion Monday that will allow former Virginia Gov. Bob McDonnell to stay out of jail while he seeks to appeal his conviction on federal corruption charges.
The one-page order came as at least a temporary reprieve for McDonnell, who is expected to file papers with the Court in the coming weeks. Any decision by the justices on whether to take up his case is several weeks away.
“I am grateful for the Supreme Court decision today and thank Almighty God for His protection and provision for me and my family,” McDonnell said in a statement following the decision.
Although the Supreme Court’s order was brief, the Court would have considered factors such as whether there was a reasonable probability that the justices would agree to hear the case once it was properly before them.
The action came as something of a surprise as McDonnell’s requests were rebuffed at the lower court level. It suggests that at least some of the justices are interested in his case, but it is by no means certain that they will eventually vote to take up the case.
“It’s very unusual for the Supreme Court to put a lower court’s decision on hold, particularly before a party has even filed its formal petition seeking the Court’s review,” said John P. Elwood, a partner at Vinson & Elkins.
He said it’s even more rarely done in criminal cases where the effect is to keep the defendant out of jail while the courts are reviewing the case.
“It requires a showing that there’s a reasonable probability that the Supreme Court will agree to take the case, and a fair prospect that the Court would reverse the decision of the lower court — that is a difficult standard to meet,” Elwood said.
The core of the case centers around money and loans McDonnell received from Jonnie R. Williams Sr., the CEO of a Virginia based publicly traded company Star Scientific. In July, the Fourth Circuit Court of Appeals affirmed a lower court ruling that McDonnell violated the law when he received the gifts in exchange for official acts to help Williams. Lawyers for McDonnell argued that his actions didn’t directly influence governmental decision making.
In papers filed with the Supreme Court, McDonnell lawyer Noel Francisco of Jones Day argued that his client should be granted bail in part because he might complete his two-year sentence before the justices had an opportunity to rule on the merits of his case.
“It would be grossly unfair irreparable injury to be compelled to serve all or most of a prison sentence only to later have the critical legal premise for the conviction invalidated, or the fundamental unfairness of the trial confirmed,” Francisco said.
Concerning the merits, Francisco wrote that Williams never “received a single dime of state money or any other state benefit” and that McDonnell never told Williams that he would help him obtain such benefits.
He said the actions McDonnell took on behalf of Williams didn’t qualify as “official acts” and that the lower court decision “will revolutionize politics, dramatically expanding federal corruption laws to make every routine political fundraiser that trades any ‘access’ for campaign donations into a felony.”
Francisco also argued that the lower court failed to adequately question prospective jurors about pretrial publicity.
The government filed a brief urging the Court to deny McDonnell’s request.
In Court papers, Solicitor General Donald Verrilli argued that McDonnell and his wife “solicited and secretly accepted more than $177,000 in money and luxury goods” from Williams and that, in exchange, McDonnell agreed to use “the power of his office to help William’s company secure assistance from the Virginia government.”
The case has been closely watched not only by those who appear before public officials, but by the officials themselves who are concerned about the boundaries they face when interacting with constituents, donors and business leaders.
In his brief, however, Verrilli cautioned that the lower court decision does not “threaten to criminalize routine political conduct.”
He said the the court’s analysis rested on the “unusual facts” of McDonnell’s case and that the Court of Appeals “did not hold that attending or arranging a meeting or giving a speech always or even often constitutes ‘official action.'”
