McDonnell v. United States: OGE Issues Advisory on Supreme Court Decision to Ethics Officials

Posted: 12:09 am ET
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Last month, the Office of Government Ethics (OGE) issued a legal advisory related to the SCOTUS ruling on bribery charges against former Virginia Governor Robert F. McDonnell.  To recap, the former governor, and his wife, Maureen McDonnell, were indicted by the Federal Government on “honest services fraud and Hobbs Act extortion charges related to their acceptance of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed Anatabloc, a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies.”  According to court filings, to convict the McDonnells, the Government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts.  The case was argued in the Supreme Court in April 2016, and SCOTUS decided on the case in June 2016 (see SCOTUS case here in PDF).

Excerpt from the OGE memo:

On June 27, 2016, the U.S. Supreme Court issued its opinion in McDonnell v. United States, 579 U.S. ___, 195 L. Ed. 2d 639 (2016), which vacated the lower courts’ conviction of former Virginia Governor Robert F. McDonnell on bribery charges. The U.S. Office of Government Ethics (OGE) is issuing this legal advisory to emphasize that the Supreme Court’s holding in McDonnell does not affect other applicable prohibitions on Federal employees’ solicitation or acceptance of gifts, including 5 U.S.C. § 7353 and 5 C.F.R. § 2635.202(a).

The advisory notes the following:

5 U.S.C. § 7353 prohibits an executive branch employee from soliciting and accepting gifts from any prohibited source, unless an exception promulgated by regulation applies. Likewise, the Standards of Ethical Conduct for Employees of the Executive Branch, at 5 C.F.R. § 2635.202(a), prohibit an employee from soliciting or accepting any gift, directly or indirectly, if the gift is given because of the employee’s official position or the person offering the gift is a prohibited source. There is no requirement for the gift to be made in connection with any “official act” for these prohibitions to apply. These prohibitions apply to anything having monetary value unless the item is excluded from the definition of “gift” under 5 C.F.R § 2635.203(b) or qualifies for one of the narrowly tailored exceptions set forth in 5 C.F.R. § 2635.204.

OGE also says that “The Court’s opinion did not address the application of 5 U.S.C. § 7353, 5 C.F.R.§ 2635.202, or any other ethics law; rather, the Court opined solely on the construction of 18 U.S.C. § 201(a)(3). Consequently, the McDonnell opinion also does not affect OGE’s legal interpretation of the criminal conflict of interest statutes at 18 U.S.C. §§ 202-209 or OGE’s interpretation of the gift prohibitions at 5 U.S.C. § 7353 or 5 C.F.R. § 2635.202(a).”

Read the full advisory below:

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Saudi Jewelry Gifts Questions: @StateDept Retains Gifts for the U.S. Diplomacy Center Collection

Posted: 3:30 am ET
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Some questions have been raised about the gifts from Saudi Arabia, particularly a few specific, high valued items given to Secretary Clinton during her tenure as Secretary of State.  We’ve asked the State Department about this, and we were told that one gift is pending transfer to the GSA but three have been retained for the U.S. Diplomacy Center (@DiplomacyCenter) collection.  The United States Diplomacy Center which is scheduled to be completed in 2016 is a public private initiative which will include some 6,000 diplomatic artifacts  — via:

The Department of State is providing the space, staff and security, while the private sector will provide the funds to design and build the 40,000 sq. ft. facility. The Center includes a 20,000 sq. ft. exterior Pavilion and its informative exhibits about today’s Department of State in Hall 1, the Founding Ambassador Concourse below Hall I, and two interior Halls both of 10,000 sq. ft. each: one chronicling the history of the American diplomacy, and the other focusing on education. The USDC is located at the Department of State building on 21st Street at Virginia Avenue NW, in Washington, DC. Visit the USDC website www.Diplomacy.State.gov for information on the progress and developments of the creation of the United States Diplomacy Center.

The following response from a State Department spokesperson:

Per GSA guidelines, there is no timeline for reporting gifts of more than minimal value to GSA after they’ve been received. The Department of State reports all gifts of more than minimal value annually in the Federal Register and generally biannually directly to GSA when doing a transfer of gifts. The Department transfers the maximum quantity of gifts GSA has the capacity to accept.

When a gift is no longer being used for official use, it must be reported within 30 days to the Office of the Chief of Protocol, to pend transfer to GSA.

‎All four gifts in question are in the possession of the Department of State. The first three are in official use, as part of the collection of the U.S. Diplomacy Center. The final is being stored and pending transfer to GSA, and will be transferred when GSA has the ability to accept it.‎‎

Here are some gifts currently included in the Diplomacy Center’s online collection:

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