This previous post previewed U.S. v. McDonnell, the former Virginia governor’s Supreme Court appeal of criminal charges related to the acceptance by the McDonnells of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams (CEO of Star Scientific) while Governor McDonnell was in office.
Although outside the context of the Foreign Corrupt Practices Act, the case is FCPA relevant because it presented the Supreme Court with the following question: “whether ‘official action’ is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed.”
As noted in the prior post, the core of the FCPA’s anti-bribery provisions prohibit the direct or indirect payment or offering of money or anything of value to a “foreign official” for purposes of: (A) (i) influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; or (B) inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality in order to assist the payor in obtaining or retaining business for or with, or directing business to, any person. (emphasis added).
Yesterday, the Supreme Court, in a unanimous decision written by Chief Justice Roberts, reversed McDonnell’s criminal convictions. Calling the government’s theory of prosecution “boundless,” the Court adopted a narrow interpretation of the meaning of “official action.”