In a surprise to some observers, the U.S. Supreme Court on Monday allowed former Gov. Bob McDonnell to remain free while the justices decide whether to take up his appeal.
In a one-paragraph order, the high court told the 4th U.S. Circuit Court of Appeals to hold off on making its July 10 ruling upholding McDonnell’s 11 corruption convictions final, permitting McDonnell to remain on bond.
Should the justices not take the case, the stay ordered on Monday will end automatically. If the court takes the case, the stay will continue, the court ordered.
“Wow,” said Randall Eliason, former chief of the Public Corruption/Government Fraud Section at the U.S. Attorney’s Office in Washington. “It suggests there is some level of interest at the Supreme Court in reviewing the case, even though not a single appellate judge in the 4th Circuit agreed with his arguments.”
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Henry Asbill, one of McDonnell’s lawyers, said, “We’re very grateful for this order and we’re gratified that the justices recognize that this case raises substantial and important legal questions and we look forward to a full merits briefing.”
McDonnell’s lawyers made the request to Chief Justice John G. Roberts Jr., who referred the matter to the full court.
Carl Tobias, a professor at the University of Richmond School of Law, said McDonnell needed a majority vote for the stay — it is unclear how many justices — but only needs four votes for the court to agree to take up his appeal.
“I am surprised,” Tobias said of the stay. “There’s no explanation” provided by the justices, “so it’s really hard to know what the vote might have been. But I think it may be a hopeful sign for McDonnell.”
“It certainly buys some time,” perhaps four months or more while the court considers taking the case, he said. “I think it shows there is some interest on the court in this case,” but not necessarily the ultimate outcome. “There’s still a lot of steps to go.”
Former federal prosecutor Andrew G. McBride said, “I am frankly not surprised that the court is interested in the case.”
The order means enough members of the high court believe a reversal of the lower court is enough of a possibility to maintain the status quo and leave McDonnell free for now.
“Several members of the court have expressed the view that the ‘honest services theory’ of mail and wire fraud is unconstitutionally vague,” McBride said.
The government opposed continued bond for McDonnell and argued that he should begin serving his two-year term. A spokeswoman for the U.S. attorney had no comment on the order.
McDonnell and his wife, Maureen, were convicted of corruption charges stemming from $177,000 in gifts and loans they accepted from Jonnie R. Williams Sr., the former CEO of Star Scientific, in exchange for helping with the promotion of a product.
Williams, granted immunity, was not prosecuted.
After sentencing McDonnell in January, Spencer gave him until 2 p.m., Feb. 9, to report to whichever facility he is assigned by the Federal Bureau of Prisons.
Over the objections of the government, the Richmond-based 4th U.S. Circuit Court of Appeals allowed McDonnell to remain on bond while his case was considered there.
A three-judge panel of the court unanimously upheld McDonnell’s conviction, and the full court rejected his bid for a rehearing. Had the U.S. Supreme Court not granted his stay, the appeals court decision would have been final last week.
According to experts, the justices apparently have never granted bail to someone in McDonnell’s circumstances over the past 30 years.
However, McDonnell’s lawyers pointed out to the justices that McDonnell was not in custody and looking to be released. A stay order to the 4th Circuit was all that was required.