In McDonnell v. United States, a unanimous Supreme Court vacated former Virginia Governor Robert McDonnell’s convictions on bribery-related charges, based on its interpretation of the term “official act” under the domestic federal bribery statute. Last month, the Department of Justice announced that it would not retry Governor McDonnell and moved to dismiss the charges.1 Although McDonnell did not mention the Foreign Corrupt Practices Act by name, the striking similarities between certain of the FCPA’s anti-bribery provisions and the statute cabined by McDonnell raise significant questions about whether several activities previously thought to run afoul of the FCPA remain violative of the statute.
‘McDonnell v. United States’
McDonnell’s facts will sound familiar to lawyers experienced in FCPA matters. Over several years in office, the McDonnells accepted money and lavish gifts exceeding $175,000 from a Virginia businessman. The gifts from the businessman, who hoped that the governor would assist in getting the state’s public universities to research a nutritional supplement, included: private airplane transportation; expensive dinners and a $5,000 bottle of cognac; a $20,000 shopping spree at Bergdorf Goodman, Oscar de la Renta, and Louis Vuitton; $25,000 in gifts for his daughters’ weddings; six figures’ worth of loans; numerous rounds of golf, meals, and shopping; a Cape Cod retreat and another vacation that included boat fees and use of a Ferrari; and a Rolex watch with custom engraving.2
