WASHINGTON — With the threat of prison looming, former Virginia Gov. Bob McDonnell has asked the U.S. Supreme Court to allow him to remain free while he appeals his corruption conviction to the high court.
McDonnell’s defense team filed the emergency stay request hours after the Fourth Circuit Court of Appeals in Richmond rejected a similar plea Thursday, effectively ordering him to report to prison. His petition asks for the appeals court decision to be delayed or that he be allowed to remain out on bond.
Although the order from the appeals court takes affect next week, he won’t likely have to report to prison for several more weeks.
“Gov. McDonnell is not a flight risk or threat and, absent relief, he would serve much of his sentence before this court can review his dubious conviction,” his attorneys write. They also argue that pretrial publicity may have tainted the jury pool and that the conviction and subsequent rulings criminalize routine political conduct.
Chief Justice John Roberts, who is assigned to the Fourth Circuit, will consider the emergency request himself or refer it to the full Supreme Court.
How soon McDonnell might begin serving his two-year sentence depends on when and whether the Supreme Court issues an emergency stay, and how quickly the U.S. Bureau of Prisons can process his paperwork and assign him to an institution.
Typically, the bureau needs just a few days to determine a prisoner’s assignment. But first, the courts take several days to submit pre-sentencing reports and any other information and documentation to the bureau. A prisoner might have a few more days between receiving their order and when they must turn themselves in to either the U.S. Marshals or their assigned prison, says Bureau of Prisons spokesman Edmond Ross.
Amy Tenney, a white collar crime professor at American University Washington College of Law, says that McDonnell likely has a month or so before he would be expected to report to prison. And she believes that the court will likely decide whether to stay his sentence in the next month or so.
“This is the last opportunity for the governor to avoid prison,” Tenney says. “If the Supreme Court does not act by the time the governor is required to report to prison, he will have no choice but to report to prison.”
Paul Rothstein, who teaches law at Georgetown University and specializes in trials and appeals, says that the emergency stay petition is dicey and unlikely to yield the result McDonnell is hoping for.
The court would step in only if the justices feel that the case has merit and that the court is likely to overturn his conviction, Rothstein says.
“It is not very likely that the court would consider his case,” he says, because the issues raised by McDonnell’s attorneys are “fairly routine.” And if the court agreed to hear his appeal, arguments would not be considered until sometime in 2016.
Tenney agrees that the odds are “extremely small” that the court would hear McDonnell’s appeal. But the justices could be tempted to address a divergent view among the lower courts over the definition of “official acts,” she says.
What constitutes an “official act” remains at the heart of McDonnell’s defense and his attorneys are asking the high court to resolve the conflicting court opinions.
McDonnell was sentenced to two years in prison for taking more than $170,000 in gifts and loans from Virginia businessman Jonnie Williams in exchange for the prestige of the governor’s office.
A three-judge panel unanimously upheld McDonnell’s corruption convictions this summer, and the full appeals court declined to rehear the case.
McDonnell has said that he will appeal his conviction to the high court, which would require a separate request of the court from his emergency petition to remain free.
McDonnell and his wife Maureen have remained free since their jury conviction in September.
Maureen McDonnell will have her appeal heard by a three-judge panel Oct. 29. She was sentenced to one year and one day in prison.
McDonnell v. United States Emergency Application
WTOP’s Max Smith contributed this report.
