Bob McDonnell Wants The Supreme Court To Do Something It Doesn't Do

Former Virginia Gov. Bob McDonnell (R) got a brief reprieve  from Supreme Court Chief Justice John Roberts on Monday. Now, he wants a much longer one.

The governor-turned-felon is asking Roberts to let him stay out of prison on bail while he pursues a full appeal of his conviction on corruption charges before the Supreme Court. That appeal could take many months or even years.

It's been a busy week for the lawyers: On Monday, Roberts -- who handles these kinds of minor requests involving cases from the Virginia-based federal appeals court -- temporarily spared McDonnell from reporting to prison. On Wednesday, the Justice Department's team urged the chief to reverse course. On Thursday, McDonnell's attorneys filed documents attempting to rebut the government's argument.

McDonnell's lawyers wrote that they hope the Supreme Court "will ultimately draw the line between lawful democratic politics and federal criminal corruption with greater care and caution than" did the U.S. Court of Appeals for the 4th Circuit, which upheld McDonnell's multiple convictions  in July.

If the 4th Circuit's decision is allowed to stand, McDonnell's lawyers argued, it "will upend the political process, devastate fundamental First Amendment freedoms, and confer vast discretion on federal prosecutors."

Perhaps. But there's still a way to go before the Supreme Court even considers whether it will review those weighty issues. In the meantime, McDonnell can avoid prison a while longer if Roberts grants him bail.

Good luck with that. Federal law allows a defendant appealing his conviction to be released on bail  if certain conditions are met. But those conditions are hard to meet, even more so if you're down to asking the Supreme Court for bail.

U.S. Law Week editor Kimberly Robinson wrote this week that no Supreme Court justice has granted such a bail application in more than a dozen years and perhaps not in the last 30 years . She pointed to a legal treatise cited by the Justice Department in its filing.

In its opposition to McDonnell's request, the government relied on that treatise to remind the justices that "there is not a single published ... opinion" that granted such a bail request since 1984 -- the year Congress toughened the law governing the release and detention of federal defendants.

Robinson noted that the treatise describes the practice of an individual justice blessing a bail application as "largely obsolete."

In their Thursday filing, McDonnell's lawyers largely brush aside this history.

The reason the justices aren't granting bail may be the strict conditions that must be met : To get bail while the appeals process continues, McDonnell essentially has to convince Roberts that the Supreme Court will take his case. In other words, he has to convince the chief justice that his arguments are legally strong enough that the court will agree to review his case in an upcoming term. These days the justices tend to grant review to only about 70 or so cases each term.

But that's not all. McDonnell also has to convince Roberts that his arguments are so good that it's "likely" that a majority of the justices will agree to reverse his conviction. That is, that his case is such a slam dunk that he'll win it.

Again, good luck with that. 

Roberts could rule any minute now on McDonnell's bail request. As someone who has shown some restraint in cases of high political salience , he probably won't grant it.

Of course, if McDonnell truly believes he did nothing wrong, he need not despair: The Supreme Court could still consider his full appeal while he sits in a federal prison.