In McDonnell v. United States, decided on June 27, 2016, a unanimous U.S. Supreme Court vacated the high-profile public corruption conviction of former Virginia Governor Robert McDonnell. Chief Justice John Roberts, writing for the court, rejected the federal government's "boundless" reading of the federal bribery statute. At the same time, the court cautioned that public officials who agree to perform an official act in exchange for a thing of value will remain subject to federal prosecution.

At trial, the government requested and received a jury instruction that an "official act" included any "acts that a public official customarily performs." This broad definition allowed the government to argue that virtually any workday interaction with other government employees or constituents constituted an "official action" sufficient to support a bribery conviction. Correspondingly, the district court denied Gov. McDonnell's request to instruct the jury that "merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, 'official acts.'" Gov. McDonnell was convicted after a five-week trial and sentenced to two years in prison. The Court of Appeals for the Fourth Circuit affirmed the conviction and sentence on direct appeal.

McDonnell narrows the scope of what constitutes an "official act" underlying bribery in the first instance. With these pronounced rules or boundaries in place, certain convictions will undoubtedly be revisited by enterprising defense attorneys. Assuming there is evidence of some type of thing of value provided to a public office, did that official in turn provide an "official act?" And it is true enough that McDonnell no longer allows the government to prosecute a public official solely for receiving gifts and then engaging in everyday functions such as making a phone call or setting up a meeting.

The government has lost none of its authority to prosecute a public official who appears to have exerted improper influence on a pending governmental question in exchange for an item of value. What McDonnell has accomplished is that prosecutors can no longer transform any governmental act into an "official act" under the bribery statutes. Something more, something real, is now needed.