Amicus Briefs Piling Up On Behalf of McDonnell

RICHMOND, Va. (CN) - Forty-four former state attorneys general and the National Association of Criminal Defense Lawyers are among those urging the 4th Circuit to throw out the corruption convictions of former Virginia Gov. Bob McDonnell.

In a series of briefs filed this week, supporters of McDonnell, who was convicted of corruption in September 2014, but remains free pending his appeal of a two-year jail sentence, assert that not only did the jury get it wrong when it decided against the former governor, but that there ruling will have far-reaching negative consequence.

The former state attorneys general, for instance said they believe "the boundless definition of 'official act' that emerged from the proceedings below threatens to criminalize wide swaths of state political life.

"At the very least," they continue, "it empowers federal prosecutors to charge state officials with crimes for routine political pleasantries, casting a fog over every dinner with a constituent or appearance at a fundraiser.

"That uncertainty will make it difficult (nigh impossible) for state attorneys general to advise their clients about whether particular conduct crosses the invisible, constantly shifting line between common political courtesy and indictable corruption, they add.

The attorneys general, both Republican and Democrat, says if McDonnell's conviction were allowed to stand, the precedent would "paralyze state attorneys general in their efforts to advise their public-official clients about whether activities previously thought innocent now carry the threat of federal criminal liability."

The defense lawyers raise similar concerns, and complain that the trial judge's instruction to the jury about what constitutes an "official act" improperly altered the "federal-state balance without a clear statement from Congress."

They argue that U.S. District Judge James Spencer's instruction to the jury permitted it to convict McDonnell for accepting $165,000 in gifts in return for attending events and arranging access to other public officials.

"Congress has made no statement at all that such conduct involves 'official acts,' much less the 'clear statement' that the Supreme Court requires," the defense lawyers say. "Under federal law, an 'official act' requires a decision or other action on a pending governmental matter. The mere attending of events or arranging of access, without either taking action on a pending governmental matter or pressuring someone else to take action, does not meet that standard."

A third brief, this one filed by 40 current and former Virginia lawmakers, predict McDonnell's conviction will create a "new normal" for state policymakers.

Already an ethic reform bill passed by the Virginia General Assembly in the wake of McDonnell's conviction, prohibits any state or local employee and their family members from accepting gifts valued over $100, with the exception of "gifts from personal friends," or those received at events in attendance of over 25 persons.

In addition, the receipt of gifts valued at more than $50 now require disclosure on finance statements. Any misrepresentation on disclosure forms is punishable as a Class 5 felony under the new law, which is scheduled to take effect on Jan. 1, 2016.

"The conviction of Governor Robert McDonnell on a uniquely broad interpretation of the federal bribery statutes blurs the line between honest political interactions with constituents and public corruption," the lawmakers say in their brief. "It now appears that accepting token gifts from a constituent--even in the absence of the legislator's promising or undertaking an official act--may lead to federal prosecution should the constituent request even the slightest assistance from the legislator."

the next hearing related to McDonnell's appeal is scheduled for May 12.

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