Bob McDonnell: It depends on the meaning of the word ‘guilty’

By Suzanne Garment
January 29, 2014

The other prosecutorial shoe has finally dropped on Robert McDonnell, Virginia’s just-retired Republican governor. Last week a federal grand jury indicted the former governor and his wife, Maureen, for conspiring to defraud Virginia’s citizens of McDonnell’s “honest services” and to obtain property “under color of official right” — that is, to procure bribes through extortion. He was also charged with making false statements and obstructing an official investigation.

The indictment is replete with details of the many gifts the McDonnells received from Jonnie Williams, a corporate executive who was trying to get state help for his company.

But the governor’s defenders are now describing the whole affair as an unfortunate lapse in the first lady’s judgment. They note that McDonnell rejected a deal proposed by prosecutors, in which the governor would plead guilty to a single felony charge unrelated to official corruption and his wife would escape prosecution altogether. In other words, these defenders suggest, the prosecutors are not so confident of the strength of their case.

The key question is: Do the facts of the case add up to an unambiguous crime? If so, what crime?

It’s anyone’s guess.

“Theft of honest services” cases have become more problematic since the Supreme Court recently ruled they should only apply to actual bribery and kickback schemes — not to simple self-dealing or conflict of interest. In addition, without evidence of what is called “extortionate duress,” an imposition of a real fear of harm, a court in a bribery case is now more likely to require a concrete example of an official delivering some “public good” in exchange for the property received.

That isn’t going to be so easy in the McDonnell case.

True, we’re dealing with a lot of shady circumstances. By the time McDonnell took office in 2010 and officially became a “rising Republican star,” he was a study in upward mobility, conservative-style. He went to Notre Dame on a ROTC scholarship, earned a joint J.D./M.B.A. degree from the Christian Broadcasting Network University, married a former Washington Redskins cheerleader, had five children, entered the Virginia House of Delegates in 1991, and became the state attorney general in 2006.

Meanwhile, through his limited liability company, McDonnell had invested at the top of the market in rental properties around the state, especially vacation rentals. When real estate went south in 2008 — just as the McDonnells’ political expenses increased — the family really began to need money.

It was this chronic need for funds that the Washington Post highlighted last spring, when it revealed that Williams had paid for the catering at a McDonnell daughter’s wedding. The family’s need for money was also the theme sounded by a former executive mansion chef, charged with embezzlement, who responded by accusing the McDonnells themselves of stealing state property from the kitchen.

Not long after, the Post reported that the McDonnells had billed the state for such personal items as body wash and dog vitamins.

The federal indictment puts real meat on the bones of this theme. Williams’ company, Star Scientific, née Star Tobacco, was trying to market a tobacco-based dietary supplement by getting state money for scientific studies of its purported anti-inflammatory effects. The governor and his wife hosted a launch event at the governor’s mansion. McDonnell’s office prodded the state’s secretary of health to meet with Williams and review Star’s materials. Mrs. McDonnell tried to promote public research that could be funded by the Virginia Tobacco Commission.

When it comes to the McDonnells’ taking, the indictment is even more colorfully concrete. One McDonnell or the other asked Williams for an Oscar de la Renta dress for Mrs. McDonnell, a Rolex watch that she could give to her husband and a substantial loan to the McDonnells’ real estate company. McDonnell sons racked up charges at Williams’ exclusive country club. Williams lent the McDonnells his Ferrari.

Even more damning, the indictment describes the huge present that the McDonnells made to the prosecutors by trying to conceal their connections with Williams. Mrs. McDonnell bought Star stock — and then moved it out of her portfolio by the time the McDonnells would have had to include it in their annual financial disclosures. After the FBI interviewed Mrs. McDonnell, she sent Williams a note saying she had always meant to return the clothing he had bought her. The governor amended a loan application to disclose the money his real estate company had received from Williams.

Still, this may not add up to a clear extortion conspiracy — partly because Williams does not seem to have received anything concrete in return for all the stuff he gave the McDonnells. In particular, he did not get his funding from the Virginia Tobacco Commission.

Instead, what he got was various expressions of support from the McDonnells. The prosecutors characterize these expressions as a failure by McDonnell to provide his “honest services” to the people of Virginia — but this characterization assumes that everybody knows how McDonnell would have acted if he had, in fact, been providing his “honest services” as governor.

If this case comes to trial, the McDonnells are likely to argue that they supported Star’s product because of their genuine interest in health and nutrition and their conviction that anti-inflammatory drugs are a key to reducing the healthcare costs borne by the sovereign state of Virginia. They are equally likely to argue that the governor did for Star only what he did for other companies whose success he considered vital to the economic health of the same sovereign state of Virginia.

So this case may not turn out to be a single-themed morality play. Instead, it may just be a classic modern-day scandal — a tangle made up of the economic strains of politics on a non-moneyed family; a resentful ex-employee; a businessman skilled at ingratiating himself with public figures in order to pursue private advantage, and prosecutors convinced that there must be a criminally significant connection between the receipt of favors and an official’s departure from an ill-defined standard of what constitutes “honest services.”

The McDonnell case offers us, again, the picture of a politics in which the concept of the public interest is seemingly fractured beyond any possibility of consensus. Instead of a community having a shared sense of the boundary between proper and improper behavior by officials and private citizens, we can manage only legalistic debates over billing practices, “duress,” and quid pro quo.

Whether the McDonnells are convicted of a crime, or deserve such a conviction, may be the least of our problems in this area.

 

PHOTO (TOP): Bob McDonnell.  Wikipedia Commons

PHOTO (INSERT):  Virginia Governor Bob McDonnell and First Lady Maureen McDonnell visit with Virginia National Guard personnel Sept. 11,  2012 at Mullins Armory in Sandston. Virginia National Guard/Staff Sargent Terra C. Gatti, Virginia Guard Public Affairs

 

2 comments

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The fact that there is not a defined legal hurdle is B.S. Either McDonnell (or his wife) has personally benefited because of his office or he didn’t. If he did, then he should take the hit.

Only lawyers and politicians operate in shades of gray with impunity. The rest of us working stiffs would lose our job if we even allowed a vendor to buy us a lunch at McDonald’s. It’s in our company handbook.

Posted by COindependent | Report as abusive

Gee, Gov. Bob, your rebuttal is kinda Clintonesque. I thought moral relativism would be unacceptable to a Regent U grad like you.

Posted by CBird | Report as abusive