Schapiro: McDonnell beats corruption rap - on a technicality
(by Jeff E. Schapiro, Richmond Times-Dispatch, June 27, 2016, Link)
Bob McDonnell had his own Innocence Project. Problem is he may not be innocent.
In its unanimous decision Monday reversing McDonnell’s 2014 conviction for selling his office to a diet-product impresario for more than $170,000 in sweetheart loans, cash, gifts and trips, the U.S. Supreme Court cited briefs on behalf of the former governor by lawyers to five presidents — Democratic and Republican — six former Virginia attorneys general from both parties and 77 former attorneys general from other states, 41 of whom are Democrats, 35 Republicans and one independent.
Writing for the court, Chief Justice John G. Roberts embraced their argument that the McDonnell prosecutors and trial and appellate judges had gone too far in their interpretation of an official act under federal anti-corruptions statutes to include meetings and discussions during which no definitive action was taken by McDonnell for the state, through its health and personnel agencies, to promote Jonnie Williams Sr.’s controversial tobacco-derived product, Anatabloc.
That was wrong, Roberts said, in echoing McDonnell’s legal allies, because it represented such a broad expansion of the law that it could prevent public officials from interacting with the people they’re supposed to serve, thus limiting their effectiveness.
As McDonnell said when he testified in his own defense — Williams’ supposed bribes notwithstanding — he was trying to assist a constituent whose interest in jump-starting Virginia’s recession-battered economy tracked his.
But in narrowing the standards under which federal prosecutors can pursue crooked politicians and in signaling to the states that they should take greater responsibility for policing the conduct of their officials, the Roberts opinion does not say that McDonnell is innocent. Though McDonnell and Speaker Bill Howell, his closest ally in a Virginia legislature that continues to balk at a significant strengthening of ethics laws, declared as much.
“There is no doubt that this case is distasteful; it may be worse than that,” said Roberts.
“But our concern is not with the tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broad legal implications of the government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this court.”
It can be argued, then, that McDonnell’s conviction and two-year prison term have been junked — for now — on a technicality.
At another point in the opinion, Roberts declared, “None of this, of course, is to suggest that the facts of this case typify normal political interactions between public officials and their constituents. Far from it.”
It will be up to the Richmond-based 4th U.S. Circuit Court of Appeals, which unanimously affirmed McDonnell’s conviction, to determine whether the Republican who had openly angled for the 2012 vice presidential nomination can be retried — and perhaps found guilty — under the guidelines of the Supreme Court’s stunning ruling. That all eight justices sided with McDonnell — the court has been down a vote since the death in February of Antonin Scalia — may compel prosecutors to pass on a second trial.
Unfolding at a time when politics, national as well as Virginia, is shaped by the perception of a bitter disconnect between elective officials and the people they represent, the McDonnell decision could magnify voter cynicism. In the months following the conviction, a public opinion poll by the University of Mary Washington showed that six in 10 Virginians believed McDonnell should go to prison.
Said Larry Sabato, a political analyst at the University of Virginia, “The elites are saying this is understandable behavior. But average people were outraged by this. That’s where the jury verdict came from.”
Twelve jurors unanimously voted 11 times to find McDonnell guilty under the Hobbs Act, a broad anti-corruption law, and of wire fraud. But the Supreme Court said the verdict could not stand because the trial judge, James R. Spencer of the U.S. District Court for the Eastern District of Virginia, erred in his instructions to the jury with a sweeping definition of what constituted an official act by McDonnell.
What endures is the stain of the McDonnell scandal; that it wrecked Virginia’s reputation for clean government. This is not to say that the state is immune to corruption. Phil Hamilton, the No. 2 Republican on the House Appropriations Committee, was convicted of bribery and extortion in 2011 and sentenced to 9 1/2 years in prison. The Hamilton case was supposed to be an aberration. Never before had a governor, whose office is the constitutional embodiment the commonwealth, brought Virginia such shame.
This year — barely a year after going through the motions of tightening Virginia’s conflict-of-interest law — the General Assembly began dialing back the new restrictions. For example, it made it easier for lawmakers to be wined and dined by the lobbyists and professional organizations that already sway them with sky’s-the-limit contributions. The new law retains one of the features of its predecessor: It allows officials to police themselves, ultimately leaving it to them to decide what to report.
It was that provision under which McDonnell concealed the gifts and goodies Williams showered on him, his wife, Maureen — whose separate corruption conviction is likely to be reversed — and their five children. A daughter, Cailin, got $15,000 from Williams to pay for her wedding at the Executive Mansion. The beneficence of close personal friends and relatives does not have to be made public. The law defers to officials to determine who qualifies as a pal or kinsman.
“What we did was not as much a legal response as it was an attempt to restore public trust,” Deputy House Majority Leader Todd Gilbert said of the 2015 ethics law rewrite. “I truly believe this episode and our response to it have changed the culture significantly.”