Does former Virginia Gov. Bob McDonnell face decades in jail for the crime of engaging in politics as usual?
That’s what some pundits and legal experts are wondering in the wake of Thursday’s sweeping public-corruption verdict against Mr. McDonnell and his wife by a federal jury.
McDonnell himself was convicted on 11 of 13 counts related to charges that he used his office to promote a dietary supplement in exchange for tens of thousands of dollars in cash, expensive gifts, and a drive in a Ferrari. Wife Maureen McDonnell was convicted on nine of 13 counts. Sentencing is set for Jan. 6.
On one hand, the McDonnell trial result was unsurprising. The largess showered upon Virginia’s first couple by businessman Jonnie Williams was extensive and gaudy.
Mr. Williams gave the governor a Rolex as a present – and received a text message with a photo of McDonnell wearing the watch in return. The supplement salesman paid $15,000 to cater the McDonnells' daughter’s wedding and provided large sweetheart loans to help bail the McDonnells out of financial trouble. Prosecutors had to produce a flowchart to explain to jurors which McDonnell family member got what round of free golf where, and when.
In many cases, the gifts might not technically have been illegal. But together, they were almost a parody of corruption, a bribe scheme as seen on a “Simpsons” episode. Many political observers were shocked that McDonnell, a rising GOP star once touted as a smart VP pick for Mitt Romney, had not seen the dangers in the materialistic relationship with Williams.
“How much simpler could this get? It’s only a degree of reality or two away from an old-timey political cartoon of a tuxedoed plutocrat, smoking a cigar, handing over a big bag marked ‘$$$,' to a crooked politician slapping his back and cackling,” writes Jim Newell on Salon.
But what did Williams and his company, Star Scientific, get in return?
They got fairly mundane actions in return, that’s what. The governor set up meetings with state health officials for Williams. He made phone calls pressing for state universities to research the alleged health benefits of Star Scientific's supplements, based on a substance found in tobacco.
McDonnell’s defense argued that these were things he would have done for any Virginia-based entrepreneur. Some commentators agree, pointing out that he did not divert state funds to Star Scientific, push legislation on Star’s behalf, or appoint officials beholden in some manner to Williams.
“The precedent that doing innocuous favors for donors constitutes criminal activity should be alarming to politicians throughout the country.... By transforming politics as usual into a felony, the Obama Justice Department has broken new ground to be sure,” writes conservative Jennifer Rubin on her “Right Turn” Washington Post blog.
McDonnell’s favors for his cash-happy businessman friend might have gone beyond “politics as usual”: Calls got returned immediately, and the governor sometimes took action on Williams’s requests very quickly. Lots of Virginia business executives would have loved to have the access to the governor’s office that Williams enjoyed.
But in legal terms, prosecutors did stretch the terms of what might be considered an “official act” for the purposes of charging that McDonnell deprived voters of the honest services of his office. That’s sure to be a central issue in McDonnell’s inevitable appeal of the verdict.
In his instructions to the jury, Judge James Spencer said they could consider any actions that a public official “customarily performs” when deciding whether McDonnell traded favors for gifts. These could be informal actions, as opposed to the official stuff the governor does in public, like signing bills.
Higher courts might decide that Judge Spencer went a bit beyond settled law with this directive. In at least one recent decision, the US Supreme Court has framed “honest services fraud” relatively narrowly.
“An appellate court, or the Supreme Court, could decide that an official act by the governor has to be something more than hawking a product or holding a luncheon,” writes Mark Bowes of the Richmond Times-Dispatch in an examination of McDonnell’s possible avenues for appeal.
But in the meantime, politicians around the United States might need to reconsider actions they would have taken in the past. Not many get rides in Ferraris or Rolex watches from ambitious entrepreneurs, but lots of officials make phone calls for donors or introduce business friends to state regulators. Politico summed this point up in a headline Thursday: “The McDonnell verdict’s lesson: Politicians beware."