How McDonnell Still Shapes Bribery Defense Strategy

Since then, courts and litigants alike have grappled with the proper application of the decision.

In one of the latest examples, the U.S. District Court for the District of Columbia denied Washington, D.C., Council member Trayon White Sr.’s motion to dismiss for failure to allege an official act.

In August 2024, White was charged with accepting bribes from a confidential informant in exchange for seeking to extend government contracts.[2] In May 2026, the district court ruled that the indictment adequately pled an official act under the McDonnell ruling by alleging that White agreed to exert pressure on D.C. government officials in exchange for the payments, which it ruled is sufficient even if he had no plan to exert such pressure.

The allegations in the White case serve as a reminder of the critical role juries play in distinguishing official acts from unofficial acts.

Activities that constitute an official act can include rendering a decision or exerting pressure on another official to make a decision in a matter involving “a formal exercise of governmental power” that is “specific and focused” and pending before a public official, according to the McDonnell opinion.[3] Activities that, standing alone, are not typically official acts include arranging meetings, hosting events, speaking with interested parties or calling other officials.

As in many white collar cases, the jury verdict will frequently be based on whether the defendant had corrupt intent based on circumstantial evidence.

Allegations in the Indictment

The indictment charged White with one count of bribery in violation of Title 18 of the U.S. Code, Section 201(b)(2), for allegedly accepting bribes from a confidential government informant in exchange for using his position as a D.C. council member to assist in extending government contracts.[4]

According to the indictment, between June and August 2024, White met repeatedly with the confidential informant, accepted a total of $35,000 in cash and agreed to accept $156,000 in additional bribes. In return, White allegedly agreed to pressure D.C. employees at the Office of Neighborhood Safety and Engagement and the D.C. Department of Youth Rehabilitation Services to extend certain government contracts.

The indictment includes pictures of White allegedly accepting envelopes of cash while sitting in the confidential informant’s car, excerpts from their recorded conversations and copies of their text messages. The government also apparently has video recordings of the alleged bribe payments being discussed and made.[5]

Section 201(b)(2) makes it a crime for a federal or D.C. public official to solicit or accept a bribe corruptly in exchange for being influenced in the performance of an official act, a scheme to defraud the U.S. government or to violate an official duty.[6] Under the statute, an official act is a decision or action on a question or matter that at any time could be pending or brought before a public official in his or her official capacity.[7]

White pled not guilty, and his trial is scheduled for September.[8]

The District Court’s Denial of White’s Motion to Dismiss

White moved to dismiss the indictment for failure to allege an official act within the meaning of Section 201(b), relying principally on McDonnell v. U.S.[9]

In McDonnell, the Supreme Court concluded that an official act has two requirements: There must be a question or matter that can at any time be pending or brought before the public official, and the public official must have made a decision or taken action on the question or matter “or agreed to do so.”[10]

The court added that the question or matter must involve a formal exercise of governmental power and must be specific and focused.[11] For example, it must be more specific and focused than a broad policy objective.[12]

McDonnell further held that an official act can include a public official’s knowing use of his or her position to exert pressure on another official to perform an official act.[13] It can also include a public official’s mere agreement to perform an official act even if the official does not intend to actually perform the official act.[14]

Certain common activities of a public official are not official acts, without more, such as setting up meetings, speaking with other officials or organizing events.[15] And, if a public official merely expresses support for a decision or action, that is not an official act “as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an ‘official act,’” according to the McDonnell opinion.[16]

In his motion to dismiss, White reasoned that his alleged receipt of payments was not in return for an official act because he had no authority to extend the contracts and never attempted to pressure D.C. employees who had such authority. White further argued that his alleged agreement to “ascertain the status” of the contracts and “express his support” for them did not amount to an official act.[17]

The district court denied White’s motion to dismiss on May 15.

The district court concluded that the indictment adequately alleged that White promised to perform an official act by pressuring others to extend grants in exchange for kickbacks.[18] Citing McDonnell, the district court reasoned that it did not matter whether White actually intended to pressure other officials to extend the grants so long as he agreed he would do so in exchange for something of value.[19]

Jury’s Critical Role in Determining Intent Based on Circumstantial Evidence

The White case serves as a reminder to defense counsel about the centrality of the official act requirement to a federal bribery case, which often comes down to a jury question of intent based on circumstantial evidence.

The McDonnell ruling concluded that it is the jury’s province to determine if a public official agreed to perform an official act as part of a quid pro quo, and the jury can “consider a broad range of pertinent evidence” in reaching that decision.[20] For instance, while setting up a meeting, hosting an event or making a phone call standing alone are not official acts, these activities can still be “evidence of an agreement to take an official act.”[21]

A key issue in White’s trial will be whether the government can prove beyond a reasonable doubt that White pressured or agreed to pressure D.C. government officials to extend contracts in return for the alleged payments. If the jury concludes that White merely agreed to inquire about and express support for the contracts — which will likely be a central tenet of the defense — that would likely be insufficient.[22]

On the other hand, if the jury concludes that White agreed to pressure D.C. officials to extend contracts in exchange for something of value, that would likely be sufficient to constitute an official act even if he had no intent to actually exert such pressure. As is typical in white collar cases, the government will likely seek to prove criminal intent based on circumstantial evidence, including White’s alleged receipt of cash payments and a cut of future contracts.

As the U.S. Court of Appeals for the Second Circuit observed in U.S. v. Silver in 2020, “bribery is rarely conducted in explicit terms; instead, the language of bribery is one of implication and innuendo,” and thus “a wink and a nod, an exchange of monies, and a subsequent [action] likely will be sufficient.”[23]

This is likely to be a theme of the government’s case and a centerpiece of its closing argument. The government may, however, face challenges in explaining why the confidential informant was not more direct with White about the alleged quid pro quo, given that he or she was presumably acting at the direction of law enforcement. The government may also need to confront an entrapment defense, which White’s counsel has suggested he may assert.

Other federal bribery fact patterns present their own challenges. Take, for example, cases involving campaign contributions alleged to be bribes. In those cases, the government could face challenges connecting the contribution to the agreement to perform the official act, particularly without a cooperating witness or other direct evidence of the alleged agreement.

Given the particular importance of the jury’s role in these cases, defense practitioners should focus early on the correct jury instructions and potential motions in limine to exclude circumstantial evidence that could unfairly sway or confuse the jury. In the event of a guilty verdict, post-trial motions for a new trial or for a judgment of acquittal could also be useful tools for the defense.

[1] McDonnell v. United States, 579 U.S. 550 (2016).

[2] United States v. Trayon White, Sr., No. 1:24-cr-00406, 2026 WL 1361545 (May 15, 2026), ECF No. 65.

[3] McDonnell, 579 U.S. at 574.

[4] Indictment, ECF No. 12, ¶ 69.

[5] See, e.g., Order, ECF No. 65, at 34.

[6] 18 U.S.C. § 201(b)(2)(A), (B), (C).

[7] Id. § 201(a)(3).

[8] Although the D.C. Council expelled White in February 2025, White won reelection in July 2025 and rejoined the D.C. Council. Despite Scandal and a Looming Corruption Trial, Trayon White Wins Vote to Return to the DC Council, AP, July 15, 2025, https://apnews.com/article/washington-dc-city-council-election-scandal-….

[9] 579 U.S. 550 (2016).

[10] Id. at 567 (quoting 18 U.S.C. § 201(a)(3)).

[11] Id. at 574.

[12] Id. at 578.

[13] Id.

[14] Id. at 572.

[15] Id. at 574.

[16] Id. at 573.

[17] Motion to Dismiss, ECF No. 40, at 6.

[18] Order, ECF No. 65, at 16.

[19] Id. (quoting McDonnell, 579 U.S. at 572).

[20] McDonnell, 579 U.S. at 572–73.

[21] Id. at 573.

[22] The district court found § 201(b)(2)(A) to be “the most applicable type of bribery at issue,” even though the government charged all three prongs of § 201(b)(2). Order, ECF No. 65, at 18.

[23] United States v. Silver, 948 F.3d 538, 557 n.10 (2d Cir. 2020).

Read more at: https://www.law360.com/articles/2490536?copied=1