By: Samuel W. Meekins, Jr.

Perhaps no individual litigant will be more affected by the death of Supreme Court Justice Antonin Scalia than former Virginia Governor Bob McDonnell. The Governor’s appeal to the United States Supreme Court from his “corruption” conviction is pending. A hopeful sign to the Governor’s camp has been the fact that the Supreme Court allowed him to remain free from incarceration pending the Court’s decision on the appeal. Fairly unusual stuff. Aside from the basic factual defense that there was no demonstrated quid pro quo shown for the gifts to the Governor and his family, the Governor’s best hope for reversal of his conviction rest with the concept of federal overreach. Please remember that the Governor was convicted under federal law for acts as Governor that were apparently not criminal under Virginia law at the time. No one on the Supreme Court bench was/is a greater guardian of a state’s rights than was Justice Scalia. He was a strict constructionist of the first order. It is not hard to imagine his leading the charge against the federal intrusion into state political conduct where the federal nexus was so obliquely demonstrated.

The problem for the Governor is that with Scalia gone, and even assuming that Justice Kennedy comes on board, the likely result may be a four to four tie at decision time. Ties do not go to the runner. In this circumstance, ties go to the government. Thus, if that scenario plays out, what may well have been a reversal for the Governor becomes a conviction for lack of the necessary votes to reverse.

Timing is everything. The specter of being branded corrupt and a felon and being incarcerated for years may well be based upon the deciders and a cruel twist of fate.