United States: Supreme Court's Interpretation Of "Official Act" Poses New Challenge

Last Updated: July 7 2016
Article by Matthew S. Miner and John J. Pease, III

The Court's narrower interpretation of "official act" under the federal bribery statute creates a higher hurdle for federal prosecutors.

On June 27, the US Supreme Court unanimously vacated former Virginia Governor Robert F. McDonnell's corruption conviction and erected a higher hurdle for federal bribery prosecutions. The Supreme Court rejected the government's overbroad definition of the term "official act" in favor of a narrow construction, concluding that arranging a meeting, speaking to another official, or organizing an event—without further action—is insufficient to support a conviction under 18 U.S.C. § 201.


In September 2014, a jury convicted former Governor Robert McDonnell and his wife Maureen McDonnell of bribery charges, including conspiracy to commit honest-services wire fraud and conspiracy to obtain property under color of official right. In addition, McDonnell was convicted of multiple counts of honest-services wire fraud and obtaining property under color of official right. The charges related to McDonnell and his wife's alleged acceptance of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams during McDonnell's governorship. At the time, Williams was the CEO of Star Scientific, a Virginia-based company that had developed a nutritional supplement made from anatabine. Star Scientific hoped that Virginia's public universities would perform research studies on anatabine, and Williams sought Governor McDonnell's assistance to obtain those studies.1

To successfully prosecute McDonnell, the prosecutors had to show that he committed—or agreed to commit—an "official act" in exchange for the loans and gifts. Section 201(a)(3) defines "official act" as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit."

The government alleged in the indictment, and maintained on appeal, that McDonnell committed at least five "official acts," including "arranging meetings" for Williams with other Virginia officials to discuss Star Scientific's product, "hosting" events for Star Scientific at the governor's mansion, and "contacting other government officials" concerning anatabine studies.2 McDonnell contended that merely setting up a meeting, hosting an event, or contacting an official did not qualify as an "official act," arguing that his actions were limited to routine political courtesies and never exercised government power on Williams's behalf.3

The district court instructed the jury that to convict McDonnell, it had to find that he agreed "to accept a thing of value in exchange for official action."4 The district court described the five alleged "official acts" set forth in the indictment, which involved arranging meetings, hosting events, and contacting other government officials. The district court then quoted the statutory definition of "official act" and—as the prosecutors had requested—advised the jury that the term encompassed "acts that a public official customarily performs," including acts "in furtherance of longer-term goals" or "in a series of steps to exercise influence or achieve an end."5

McDonnell appealed his convictions to the US Court of Appeals for the Fourth Circuit, challenging the definition of "official action" in the jury instructions on the ground that it deemed "virtually all of a public servant's activities 'official,' no matter how minor or innocuous."6 The Fourth Circuit affirmed, holding that the district court's jury instructions were appropriate. The main issue on appeal to the Supreme Court was the proper interpretation of the term "official act" under Section 201(a)(3).


In an opinion by Chief Justice Roberts for a unanimous Court, the Supreme Court vacated and remanded the Fourth Circuit judgment, adopting a narrower interpretation of the term "official act." According to the Supreme Court, an "official act" is "a decision or action on a 'question, matter, cause, suit, proceeding or controversy'" that "must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee."7 In addition, the act must be "something specific and focused that is 'pending' or 'may by law be brought' before a public official."8 A "decision or action may include using [one's] official position to exert pressure on another official to perform an 'official act,' or to advise another official, knowing or intending that such advice will form the basis for an 'official act' by another official."9 The Supreme Court emphasized that a public official must do more than arrange a meeting, contact another official, or organize an event to commit an official act: "Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit th[e] definition of 'official act.'"10

In support of its holding, the Supreme Court observed that "conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time" and that an overbroad interpretation of "official act" could stifle this activity.11 Quoting an amicus brief authored by former federal government officials, the Court observed that "White House counsel who worked in every administration from that of President Reagan to President Obama warn that the Government's 'breathtaking expansion of public-corruption law would likely chill federal officials' interactions with the people they serve and thus damage their ability [to] effectively [ ] perform their duties.'"12

The McDonnell decision aligns with the Supreme Court's previous decision in United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999), another unanimous opinion that similarly embraced a narrow construction of the term "official act." In Sun-Diamond, the Supreme Court held that it was not an official act under Section 201 for the US president to host championship sports teams at the White House, for the US secretary of education to visit high schools, or for the US secretary of agriculture to deliver speeches about US Department of Agriculture policy to farmers.13 Although each of these groups could have pending matters before the public officials, the existence of such matters was not sufficient to find that any action related to them constituted official acts.14

In closing, the Supreme Court in McDonnell reviewed the district court's jury instructions and concluded that the jury "was not correctly instructed on the meaning of 'official act'" and "may have convicted Governor McDonnell for conduct that is not unlawful."15 Accordingly, it vacated the Fourth Circuit's judgment and remanded the case for a determination whether "there is sufficient evidence for a jury to convict Governor McDonnell of committing or agreeing to commit an 'official act.'"16


The McDonnell decision will require the government to allege and prove linkage between the official actions of public officials and their decisions or actions on specific questions or matters before them or other officials over whom they exercise influence, and the decision outlines a number of potential ways that the government may accomplish this. For example, the same conduct alleged in McDonnell could be found to constitute an official act for the purposes of the federal bribery statute if the evidence showed that setting up a meeting, hosting an event, or calling another public official (or agreeing to take such actions) was intended to exert pressure on another official to make a decision or take governmental action on a specific pending matter.

In his merits brief in the Supreme Court, McDonnell relied on the 2010 Citizens United decision in which the Supreme Court said that "ingratiation and access" were "not corruption."17 That year, the Court also ruled in favor of former Enron executive Jeffrey K. Skilling, holding that a federal anticorruption law governing "honest services" applied only to bribes and kickbacks.18 Critics of McDonnell will surely argue that it will perpetuate a "pay to play" culture where major campaign donors will be able to continue to "purchase" access to government officials, whether through meetings set up on their behalf, or otherwise. But McDonnell rests solidly on the common-sense requirement that a clearer line must be established to transform common constituent activities into federal bribery offenses.

Although it remains to be seen how McDonnell will affect future charging decisions, the case appears to have established more rigorous requirements for future bribery prosecutions, including some significant ones that are now pending. The next test case will likely be the prosecution of Senator Robert Menendez (D-NJ), who was charged with eight counts of violating Section 201, among other crimes, for allegedly accepting bribes from a wealthy Florida eye doctor in exchange for legislative favors. The indictment's recitation of "official acts" includes allegations of arranging actual and attempted meetings with public officials, such as the former secretary of the US Department of Health and Human Services to advance the doctor's interests. Senator Menendez will likely cite the McDonnell ruling to argue that arranging such meetings does not qualify as an official act for the purposes of the federal bribery law.

Regardless of the Menendez prosecution's outcome, the US Department of Justice will likely press Congress for reforms to clarify the statutory definition of "official act," much like it pressed for a fix to the honest services fraud statute following the Supreme Court's ruling in Skilling. In view of the current political calendar, it is unlikely that any meaningful action will be taken on the matter before the 114th Congress ends.


1.  McDonnell v. United States, --- S. Ct. ----, 2016 WL 3461561, *5 (U.S. June 27, 2016).

2.  Id.

3.  Id. at 5, 11. As explained by the Supreme Court, "Governor McDonnell had requested the court to further instruct the jury that the 'fact that an activity is a routine activity, or a settled practice, of an office-holder does not alone make it an official act,' and that 'merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, official acts, even if they are settled practices of the official,' because they 'are not decisions on matters pending before the government.' He also asked the court to explain to the jury that an 'official act' must intend to or 'in fact influence a specific official decision the government actually makes—such as awarding a contract, hiring a government employee, issuing a license, passing a law, or implementing a regulation.' The District Court declined to give Governor McDonnell's proposed instruction to the jury." Id. at 11 (internal citations omitted).

4.  Id. at 10.

5.  Id.

6.  Id. at 11 (citing McDonnell v. United States, 792 F.3d 478, 506 (4th Cir. 2015)).

7.  Id. at 17.

8.  Id.

9.  Id.


11.Id. at 18.

12.Id. (citing Brief of Former Federal Officials as Amici Curiae in Support of Petitioner).

13.United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 407 (1999).

14.See McDonnell, 2016 WL 3461561 at *15 (citing Sun-Diamond, 526 U.S. at 408).

15.Id. at 21.


17.McDonnell v. United States, Case No. 15-474, Brief for the Petitioner at 25 (U.S. Feb. 29, 2015); Citizens United v. FEC, 558 U.S. 310, 360 (2010).

18.Skilling v. United States, 561 U.S. 358 (2010).

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.