Political Rogues’ Gallery Braces for SCOTUS Ruling

MANHATTAN (CN) — With the Supreme Court likely to reverse Virginia Gov. Robert McDonnell's bribery convictions in the next month, experts say whichever justice authors the lead opinion will determine the extent of fallout, with some of the nation's most publicly disgraced politicians standing to benefit.

At trial two years ago, a jury learned that one political donor had given McDonnell more than $175,000 in loans and gifts, including a Rolex and a shopping spree at Bergdoff Goodman for Virginia's first lady. The donor had also picked up the tab on both of the McDonnell daughters' weddings.

The former governor's appeals largely circled the drain until last month when a majority of U.S. Supreme Court justices appeared skeptical that prosecutors had actually shown that McDonnell broke the law. Doing so requires proof that the governor committed "official acts" for his benefactors, and political access might not make the cut.

McDonnell's case is among a smattering still left for the high court to resolve, closing out a term stunted by the February death of Justice Antonin Scalia.

While advocates of integrity in government have voiced outrage at the possibility of McDonnell's exoneration, politicians embroiled in unrelated ethics scandals are already turning the wheels of their appeals.

Just last week, McDonnell's case managed to delay the incarceration of two of New York's most powerful ex-legislators — former Assembly Speaker Sheldon Silver and Senate Majority Leader Dean Skelos.

Lawyers for former Gov. Rod Blagojevich, the flamboyant Illinois Democrat who is six years deep into a 14-year federal prison sentence, are reportedly awaiting the decision with bated breath, even though the high court rejected his appeal Monday.

Blagojevich's lead appeals attorney did not immediately return an email seeking comment.

The Washington Post reported that McDonnell's precedent could even affect cases yet to come, looking at Sen. Robert Menendez, a Democrat from New Jersey charged with accepting undisclosed trips from a donor-friend on private jet, plus a stay at a five-star Paris hotel and access to a resort in the Dominican Republic.

The Brennan Center's Daniel Weiner said in a phone interview that the fallout of the Supreme Court's expected ruling may come down to which justice drafts the opinion.

"On one end of the spectrum, you had Justice [Elena] Kagan who at oral arguments said some version of, 'He may very well be guilty, but I don't like the way you charged this case,'" Weiner observed. "Then, moving to sort of away from that, you have Justice [Stephen] Breyer who seemed somewhat more troubled by the government's failure to articulate some sort of line between ordinary politics and quid pro quo corruption. Then, all the way over to Justice [Anthony] Kennedy, who seemed to really favor a narrowing theory of honest services corruption."

In a majority opinion written by Kagan or Breyer, "you're not going to see a lot of these folks actually get off," Weiner predicted.

Instead, politicians may see their convictions reversed, but the cases against them surviving on remand.

With a Kennedy opinion, Weiner said, "you might have something as a matter of law narrowing federal corruption law."

In an editorial for the Brennan Center, Weiner compared the McDonnell case to the federal bribery equivalent of the Citizens United and McCutcheon decisions, which many lament for loosening campaign-finance laws and giving moneyed interests ever greater political power.

Elaborating on that comparison, Weiner said that his analogy referred more to the mood of the country than the legal precedent.

"The court came off to me, whether right or wrong on the doctrinal point, as deeply, deeply out of touch with how ordinary Americans view public service and the values that they think public servants should adhere to," Weiner said. "To the extent that the court adopts sort of this everybody does it reasoning, I think they're playing with fire. And I do think that the reaction to this case could be similar to the reaction to Citizens United, which is disgust."

Equating money to speech, the Supreme Court's majority in Citizens United ruled that the First Amendment protects corporate-funded political broadcasts in elections.

The Campaign Legal Center's deputy executive director Tara Malloy predicted that the Supreme Court would avoid such a sweeping constitutional ruling in McDonnell's case.

"Maybe I'm too hopeful," Malloy said glumly.

Malloy also noted that McDonnell faced seven charges under the Hobbs Act that do not apply to Skelos or Silver, who were charged with bribery, extortion and other charges.

The high court's traditionally liberal justices preferred to address the conduct seen in McDonnell's case and similar ones, Malloy said, by tightening regulations surrounding political gifts rather than using the blunt instrument of criminal prosecution.

"We would say that you should go at it both ways," she added.

Both the Campaign Legal Center and the Brennan Center submitted friend-of-the-court briefs urging the Supreme Court to uphold McDonnell's convictions.

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