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:
- 11 FAM EXHIBIT 613 PERSONAL GIFTS TO EMPLOYEES: GENERAL GUIDELINES AND FREQUENT EXCEPTIONS1 (09/03/2015)
- 11 FAM 613.1 GIFTS FROM OUTSIDE SOURCES (09/03/2015)