Nevertheless, there happen to be questions regarding the kind of “official act” which forms the foundation of the offense.

As noted previously, kickback or genuine services bribery needs an exchange of an official act for cash or property. Some earlier conclusions rejected attempts by prosecutors to enlarge the phrase “official acts” to contain activities which are “standard” in the performance of several occupations. One court overruled the conviction of a state official who offered, to get a fee, to introduce an architectural firm to high ranking officials who could subsequently procure contracts for the company. No evidence confirmed that he promised to use his official position to determine those, although the Defendant there guaranteed to make introductions. That court recognized a distinction between affording accessibility versus activities that affect a determination.

Another federal court lawyer of appeals appears to take exactly the same position. That Court said for taking cash for lobbying mayors to comply in ways that helped the hospital, a legislator cannot be convicted. That case also appeared to differentiate between activities that threaten or use using official powers versus activities that only trade on accessibility or standing that accompanies the holding of a particular office. Yet yet another national appellate court said that “official acts” are restricted to the ones that determine an actual determination about real policies. That case involved a cop who took payments in exchange for using an official authorities database to do owed warrant investigations and license plate. While getting the database was part of the officer’s responsibilities, he failed to perform an “official action” in return for the cash, in the policeman failed to exercise any improper influence on choices produced by the organization that he worked.

On appeal Governor McDonnell’s attorneys claimed he had just expanded “regular political courtesies” to anyone who paid him cash. “This is the very first time in our history a public official was convicted of corruption despite never consenting to place a thumb on the scales of any government choice,” their brief said.

I’m presently managing several issues involving possible or real prosecutions below the “honest services” theory. As it probably will affect these and future cases, I am going to keep looking at the McDonnell case we manage in this place.

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