2014-01-21-Federal-indictment-of-the-McDonnells
The 43-page federal indictment of Robert and Maureen McDonnell
2014-01-21
In this indictment, item 111.c.iii states that
among the "official actions" taken by Governor McDonnell that constitute his offense was:
contacting other government officials in the OGV [Office of the Governor of Virginia] as part of an effort to encourage Virginia state research universities to initiate studies of anatabine [a product of the company owned by the person who had made effective monetary contributions to the McDonnells]
2014-09-06-WP-McDonnell-Spencer-definition-of-official-acts
McDonnell trial’s definition of official acts could spur similar prosecutions elsewhere
By Matt Zapotosky
Washington Post, Saturday, 2014-09-06
RICHMOND —
[1]
The prosecution of former Virginia governor Robert F. McDonnell
could have far-reaching effects on federal public-corruption cases —
making it easier for prosecutors to bring charges
against those accused of abusing their official powers,
legal experts said.
[2]
The convictions of McDonnell and his wife, Maureen,
on several counts of public corruption Thursday
are historic in their own right,
bestowing upon the onetime Republican rising star the unwanted distinction
of being the first governor in Virginia history to be found guilty of a crime.
But legal experts say the case — especially if it survives an appeal —
could encourage prosecutors to pursue similar charges against
officials who take not-so-obviously significant actions
on behalf of their alleged bribers
and make it easier for them to win convictions.
[3]
“I think the case clearly pushes the boundary of ‘official act’ out a bit farther,
and I think that’s quite potentially important,”
said Patrick O’Donnell, a white-collar criminal defense lawyer
at Harris, Wiltshire & Grannis.
“It’s striking that here, McDonnell was not convicted on
any traditional exercise of gubernatorial power.
It wasn’t about a budget or a bill or a veto or appointment or a regulation.”
[4]
The McDonnells stand convicted of
conspiring to lend the prestige of the governor’s office
to Richmond businessman Jonnie R. Williams Sr. in exchange for
$177,000 in gifts, vacations and sweetheart loans.
During the six-week trial, prosecutors presented a compelling case
that the former governor and his wife helped Williams in exchange for
his largesse by arranging meetings for him with state officials,
allowing him to throw an event at the Virginia governor’s mansion
and gently advocating for state studies of a product that Williams’s company sold.
[5]
The case drew national attention in no small part because of
the couple’s claim that their marriage was too broken for them to conspire.
But at the heart of their defense was a more legally important assertion:
They argued that what they did for Williams did not constitute an “official act,”
nor was it part of any corrupt bargain with the businessman.
(The former governor testified that he did not even know what Williams wanted.)
[6]
Prosecutors had to prove both points to win convictions.
Now they’ll have to withstand an appeal likely on the same grounds —
with many across the country watching closely.
[7]
“I think politicians take notice to these sorts of things,”
said Kelly Kramer, a white-collar criminal defense lawyer at Mayer Brown.
“I think people will pay even more attention than they already did
to what they’re accepting and from whom.”
[8]
The McDonnell case is somewhat atypical because
what the McDonnells did for Williams
is not immediately obvious as an official act,
legal experts said.
Even before the trial, the McDonnells’ attorneys argued that
Williams was afforded only routine courtesies and that
defining those as official acts
would effectively criminalize common political interactions across the country.
[9]
Prosecutors’ decisive victory —
McDonnell was convicted of all 11 public corruption counts he faced
and acquitted of two bank-fraud charges —
might spark similar cases elsewhere, experts said.
[10]
The Justice Department’s Public Integrity Section
notably has received attention lately for tackling high-profile cases.
[11]
“When prosecutors win a conviction
as overwhelmingly and as quickly as they did in this case,
it does embolden prosecutors,”
said Jacob Frenkel, a former federal prosecutor now at the Shulman Rogers firm.
“When the government sees success with a theory line or prosecutorial strategy,
that gets noticed.”
[12]
U.S. Attorney Dana J. Boente and attorneys for the former governor
could not immediately be reached.
Maureen McDonnell’s attorney declined to comment.
[13]
The McDonnells’ attorneys —
who have said they will appeal —
are likely to first request that
U.S. District Judge
James R. Spencer
set the verdict aside,
experts said.
Then they will turn their focus to
the couple’s Jan. 6 sentencing,
trying to shape the guidelines
that Spencer will use to determine
how long the McDonnells should spend in federal prison.
...
[16]
The McDonnells cannot appeal their conviction until they are sentenced.
But that appeal is likely being drafted now,
with a focus on the term
“official acts,” experts said.
[17]
Spencer’s interpretation of the phrase was broad,
and experts say that if it is upheld,
it could be repeated in corruption cases for years to come.
The judge told jurors to consider an official act
“any decision or action
on any question, matter, cause, suit or controversy,
which may at any time be pending
or which may by law be brought before any public official,
in such public official’s capacity.”
It could include, he said,
any act “that a public official customarily performs”
even if it was not prescribed in law,
and it could be one in a series of steps toward some ultimate end.
[18]
Spencer seemed to be relying on
similar instructions that were given to
jurors deciding the 2009 corruption trial against
former congressman
William J. Jefferson (D-La.) —
which experts are quick to note set a framework for defining “official acts.”
But the McDonnell case, O’Donnell said, “continues to push it.”
And the McDonnells’ attorneys will probably argue to an appeals court
that in the governor’s case,
the term should have been defined
more narrowly,
said Barak Cohen, a former federal Public Integrity prosecutor now at the Perkins Coie firm.
[19]
“The defense is going to say it’s way too broad,” Cohen said.
“If ‘official acts’ were defined differently,
we may have had a different verdict.”
[20]
There are, of course, other points defense attorneys can raise
in their bid to convince an appeals court that there were errors at trial.
They might argue, for example, that
the evidence did not prove official acts were taken —
even in light of Spencer’s instruction.
They might argue that Spencer improperly blocked them from calling witnesses,
especially a former state official who they wanted to testify about
common practices of government.
And they might argue that Spencer should have granted their request
to have separate trials for Robert and Maureen McDonnell.
[21]
The appeals process, experts said, generally lasts months.
They said the McDonnells will probably request to remain out of jail
until their appeals run their course.
[22]
Spencer, experts said, is likely to turn them down,
requiring the McDonnells to report to federal prison
some time after their formal sentencing.
And that decision, too, is likely be appealed.
2014-09-07-WP-Bellin-the-mcdonnell-verdict-shows-how-easily-prosecutors-may-criminalize-politics
What the McDonnell verdict says about U.S. politics
By Jeffrey Bellin
Washington Post Op-Ed, Sunday, 2014-09-07
Jeffrey Bellin is an associate professor at William & Mary Law School.
[1]
The guilty verdicts in the trial of former Virginia governor —
and Republican sinking star — Robert McDonnell
highlight an ugly tension between America’s politics and its public corruption laws.
Beyond the pricey gifts, unraveling marriage and throw-your-wife-under-the-bus defense
that dominated the media coverage lies a more important story.
The real stars of this drama were
the vague public corruption statutes that took down the former governor and
the elusive distinction they draw between “politics as usual” and criminality.
[2]
McDonnell was not charged with bribery.
As is common in this context, federal prosecutors charged him with
the easier-to-prove crimes of fraud and extortion.
The fraud counts were based on a statute that prohibits
devising a “scheme or artifice to defraud” through the “wire[s].”
The extortion counts were based on a statute that prohibits
obtaining property “under color of official right.”
Both offenses are punishable by up to 20 years in prison.
[3]
The fraud theory works like this:
As governor, McDonnell was supposed to act on behalf of the people of Virginia.
Instead, he solicited money from a private company to act as needed on its behalf,
thus defrauding Virginians of a (small) portion of McDonnell’s “honest services.”
The extortion theory is similar.
McDonnell obtained private property that he was not entitled to
in return for a promise to perform official acts
or, in the language of the statute,
obtained money under “color of official right.”
[4]
These commonly invoked charges are powerful anti-corruption tools:
so powerful, in fact, that
they appear to criminalize wide swaths of U.S. politics.
Companies, unions and individuals
give generously to politicians and their surrogates every year.
An industrious prosecutor could find boatloads of officials
who benefited from these gifts
and then took action on behalf of those entities.
Is this also “honest services” fraud and extortion?
Legally speaking, the answer is: “Who knows?”
The distinction between a successful fundraiser and a diabolical crook
is frighteningly subtle.
[5]
The Supreme Court insists that there is a clear distinction between
the felony offenses that upended McDonnell and
our tried-and-true system of allowing private entities and individuals
to shower government officials with campaign contributions and other gifts.
That distinction comes down to the contents of the official’s mind.
To prove “honest services” fraud or political extortion,
a prosecutor must show that someone like McDonnell accepted a particular donation
with the understanding that
he would perform official acts in return.
This agreement to trade gifts for acts is all that separates
“politics as usual” from felony corruption.
[6]
Critically, the corrupt agreement need not be documented, or even articulated.
The prosecution’s proof, as in the McDonnell case,
normally takes the form of evidence that
money went to a public servant and official acts followed.
The jury can infer the requisite agreement from the circumstantial evidence.
If a jury sees “knowing winks and nods” (the actual jury instruction)
in the flow of money from donor to candidate, federal prison awaits.
[7]
Consistent with these principles,
the McDonnell jury’s 90-page instructions informed it that
it could not convict the ex-governor for the things it likely found most distasteful:
his soliciting personal gifts, exercising terrible judgment
or prompting underlings to help a guy who paid for a family wedding.
Rather, the verdict rested on whether, in all these perfectly legal actions,
the jury perceived the knowing winks and nods that are all the law requires
to turn donations into federal felonies.
That should send chills down the spines of public officials across the country.
Which, admittedly, might not be so bad.
[8]
It would be both wise (to avoid prison) and good policy
for officials to discourage large donations,
avoid decisions that benefit big donors and generally disengage from contributors.
But until that happens, we are stuck with a system in which
lots of public officials could be convicted of a felony
but few are prosecuted.
[9]
That’s not healthy for a democracy.
It gives prosecutors vast discretion to choose targets,
undermines the credibility of prosecutions that do occur and, ultimately,
says something very unsettling about our government.
Something has to give.
We either need to strengthen our campaign finance laws or, if that’s impossible,
acknowledge that our public corruption laws are merely aspirational.
A political system where any given federal, state or local official
is just a wink, nod and a motivated prosecutor away from federal prosecution
is untenable.
2014-09-12-WP-excused-mcdonnell-juror-might-have-changed-history
Excused McDonnell juror might have changed history
By Matt Zapotosky and Rosalind S. Helderman
Washington Post, 2014-09-12
If the juror who mysteriously was excused midway through the public corruption trial of Robert F. McDonnell had been allowed to join the deliberations, the outcome likely would have been very different.
Having heard most of the prosecution’s case — and none of the defense’s — Louis DeNitto Jr. said, in several interviews, that he would have pushed against convicting McDonnell (R) and his wife, Maureen, of public corruption. What the governor did for Richmond businessman Jonnie R. Williams Sr., DeNitto said, did not seem out of line with what other politicians do for benefactors.
“That jury foreman would have had a hell of a time with me,” DeNitto said.
...
U.S. District Judge James R. Spencer excused him without explanation
on the trial’s 12th day.
...
Jurors deliberated for more than 17 hours before determining that
the former state attorney general and possible national candidate
had sold his office to Williams
in exchange for $177,000 in loans, vacations and luxury goods.
DeNitto, though, said he remains skeptical,
and he is unhappy to have been excused from the jury.
He retained a lawyer, saying he was caught in a “sticky situation,”
and that the reason for his being excused — which he declined to reveal —
was “part of the appeals process.”
“It was completely unethical,” DeNitto said of Spencer’s excusing him. Through his courtroom deputy, Spencer declined to comment.
Cullen Seltzer, DeNitto’s attorney, declined to detail why he was hired or why DeNitto was removed from the jury. But he said in a statement that DeNitto was “proud to have been asked to fulfill his civic duty to serve as a juror” and “disappointed that he was not permitted to complete that service.”
“Had he been permitted to continue serving, he was committed to doing so impartially, in accordance with the Court’s instructions, and to the best of his ability,” Seltzer said. “As the case continues, Mr. DeNitto hopes that the matter will be resolved justly. He wishes all concerned good luck in the discharge of their duties in this case and to continue in his own affairs privately.”
Legal experts unconnected to the case said judges have wide latitude in excusing jurors, although they must find “good cause” to do so. If a juror violated the judge’s instructions, or lied or withheld information in answering the court’s questions, he or she could be rightfully dismissed, said Matthew G. Kaiser of the Kaiser Law Firm.
Almost from the moment it happened, DeNitto’s removal from the jury has been shrouded in mystery. Spencer conferred at length with prosecutors and defense attorneys in his chambers before emerging and telling the other jurors that DeNitto had been let go, but he didn’t say why. McDonnell emerged from the meeting looking angry.
Robin Trujillo, 54, of Richmond, a juror who ultimately helped decide the case, said two court officials entered the jury room and called DeNitto’s name, and in an instant, he was gone. He left behind a bag lunch that sat on the windowsill for days, she said.
“They didn’t even give him a chance to collect his stuff,” Trujillo said. “They just asked him to come with them, and we never saw him again.”
At the moment he left, DeNitto said he was unmoved by the help McDonnell gave Williams in promoting his company, Star Scientific, and its nutritional supplement Anatabloc.
Prosecutors said that in exchange for gifts and money, McDonnell arranged a meeting for Williams with a state health official, allowed the businessman to throw an event to promote Anatabloc at the governor’s mansion and even once personally talked about the benefits of Anatabloc to state human-resources officials as he displayed a bottle of the supplement. Williams wanted Anatabloc included in the state’s health-care plan.
“He held up a bottle of Anatabloc? So what,” DeNitto said.
And DeNitto said he was generally skeptical of the effort to prosecute McDonnell. In particular, he said he believed that prosecutors “let a big fish go to try to get a little one” in granting generous immunity deals to Williams in exchange for his testimony.
“Weigh the value of the justice there,” DeNitto said. “They gave up a whole lot just to get this guy on nothing more than any other politician has done.”
...
Legal experts said the McDonnells’ legal teams might make DeNitto’s dismissal part of their appeal, although that would be a long shot. Essentially, all Spencer must do is give a reasonable explanation, said Edward T. Kang, a former federal prosecutor now at the Alston & Bird firm.
“The key thing is there needs to be some finding on the record as to why that ‘good cause’ standard has been met,” Kang said. “If Judge Spencer even put something on the record, it’s likely that the appellate court is going to give significant deference.”
...
2014-10-15-WP-lawyers-in-mcdonnell-trial-spar-over-jurors-dismissal
Lawyers in McDonnell trial spar over juror’s dismissal
By Matt Zapotosky
Washington Post, 2014-10-15
[1]
The juror who was mysteriously excused midway through the public corruption case against former Virginia governor Robert F. McDonnell and his wife, Maureen, was let go
because he called a lawyer he knew
and mentioned his jury service —
although both he and the lawyer said
their conversation did not go far beyond that,
court records show.
[2]
The juror, Louis DeNitto Jr., has said publicly
he would have pushed against convicting the McDonnells,
and the former governor is now arguing that
the circumstances surrounding DeNitto’s dismissal
provide grounds for a new trial.
[3]
Those details have been shrouded in mystery
since U.S. District Judge James R. Spencer announced that
DeNitto had been excused —
and offered no public reason why —
after an extended, behind-closed-doors meeting on the trial’s 12th day.
McDonnell emerged from the meeting looking angry,
leading some supporters to wonder whether he had lost a perceived ally
among the people who would ultimately debate his guilt or innocence.
[4]
Even after the verdict, the reasons behind DeNitto’s dismissal
were discussed only in sealed or redacted filings.
The Washington Post filed a motion asking to unseal the materials —
noting that they could presumably play a role in setting aside the jury’s verdict —
but Spencer had not yet ruled on that request as of Wednesday.
The circumstances are public now only because of
an apparent technical error in the way prosecutors prepared
one of their latest motions.
[5]
In the motion,
prosecutors argue that Spencer properly dismissed DeNitto
for violating the court’s instructions not to talk about the case,
even if those talks were not especially substantive.
They also argue that there is no “credible evidence of premature deliberations,”
an apparent attempt to bat down defense attorneys’ contention that
DeNitto’s comments suggest
other jurors had talked about the case before it was concluded.
[6]
The McDonnells were ultimately convicted of public corruption for lending the prestige of the governor’s office to Richmond businessman Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury goods. They are now arguing that their convictions should be thrown out or, at the very least, that they should be given a new trial because of several purported legal errors.
[7]
DeNitto was not in the group of 12 who decided the McDonnells’ fate,
and he has acknowledged he did not hear all of the evidence.
Although prosecutors would rest their case just two days after he was excused,
DeNitto did not listen to the testimony of several important witnesses,
including an FBI agent who tried to pull the case together
using phone, text and e-mail records and summary charts
of the McDonnells’ dealings with Williams.
He heard all of Williams’s testimony
but did not hear the account of the former governor,
who took the stand in his own defense for nearly 24 hours
and also faced a withering cross-examination.
[8]
The recent filing from prosecutors says that after the trial’s 11th day,
DeNitto called a lawyer and brought up his jury service.
Prosecutors wrote that the lawyer, who is not identified,
called them to report the conversation,
and they immediately notified the McDonnells’ defense teams.
[9]
Spencer talked to both the lawyer and DeNitto
in a private proceeding the next day,
and their accounts of their conversation differed slightly,
according to the prosecutors’ filing.
Both the lawyer and DeNitto, though,
denied having substantive conversations about the case.
[10]
“Absolutely none, not even close,”
the lawyer said, according to the filing.
[11]
U.S. Attorney Dana Boente,
an attorney for Robert McDonnell
and an attorney for DeNitto who was hired after the juror’s dismissal,
declined to comment.
An attorney for Maureen McDonnell
did not immediately return phone and e-mail messages Wednesday night.
Former Virginia Governor McDonnell’s sentencing guidelines: 10 years at least
By Matt Zapotosky
Washington Post, 2014-12-12
The federal agency that will play a pivotal role
in guiding the sentence of former Virginia governor Robert F. McDonnell
has recommended that the onetime Republican rising star
spend at least 10 years and a month in prison
and 12 years and 7 months at most,
according to several people familiar with the matter.
The guidelines recommended by the U.S. probation office are preliminary ones,
and even if finalized,
U.S. District Judge James R. Spencer is not required to follow them.
But experts said Spencer typically heeds the probation office’s advice,
and judges in his district have imposed sentences within the recommended range
more than 70 percent of the time in recent years.
“It’s of critical importance,”
said white collar criminal defense attorney Scott Fredericksen.
“The fact is, the vast majority of times,
courts follow those recommendations closely.”
...
Former Virginia governor Bob McDonnell’s downfall is wife’s fault, children say
By Justin Jouvenal and Rachel Weiner
Washington Post, 2014-12-27
Two children of former Virginia governor Robert F. McDonnell say
his stunning downfall and conviction on public corruption charges
can largely be attributed to the corrosive effects of just one person:
Their mother.
Jeanine McDonnell Zubowsky and Cailin Young wrote in blunt —
and at times scathing —
letters to a federal judge that
it was former first lady Maureen McDonnell’s
materialism and mental-health issues
that derailed the rising political career of her husband.
The letters of support for Robert McDonnell
were part of a trove of 440 submitted by his attorneys,
who are seeking leniency at his Jan. 6 sentencing in Richmond.
“My mom . . . has always been concerned about getting discounts or freebees,”
McDonnell Zubowsky wrote.
“She hid her coordination with people for free or discounted things or services
and she didn’t communicate with my dad because she knew he would not approve. . . .
The testimony about my mom
was not just part of a defense strategy
and was not an attempt to ‘throw her under the bus,’
but unfortunately, was the reality.”
Both daughters echoed themes that emerged at McDonnell’s trial this summer,
saying their father was an upstanding and religious man,
who was privately struggling with a crumbling marriage and his wife’s unhappiness.
Robert and Maureen McDonnell were convicted in September
of using the prestige of the governor’s office
to promote the company of nutritional supplement chief executive Jonnie R. Williams Sr.
in exchange for lavish gifts and loans.
The McDonnell children said
their parents rarely communicated because their relationship was so strained.
McDonnell Zubowsky wrote that she believed
her mother had mental-health problems for years
and her father planned to address the issues after he left office.
She wrote that her mother was lonely as her father’s political career took off
and she sought solace in material things.
She also asked the judge to spare Robert McDonnell jail time
because she is scheduled to give birth to his first grandchild in January.
Cailin Young wrote that it was incredibly painful to see
intimate details about her parents’ troubled private life
splashed across TV and newspapers daily during the trial.
She and other family members said
the public humiliation and trauma of the conviction
had shattered their lives and that
they would have a difficult time if he were imprisoned.
“My Father is the heart and soul of our family
and we will be lost without him,”
Young wrote.
Her husband, Christopher Young, added that
“the mere thought of life without him is so heartbreaking
that I cannot even believe it to be possible.”
McDonnell’s sister also took aim at Maureen McDonnell,
writing in a letter that
“some of his wife’s actions have been unilateral
and have blindsided Bob and his family.”
The private pain and turmoil described by some of Robert McDonnell’s closest family members contrasts sharply with the public figure that emerges in the hundreds of other letters submitted by the defense. From major policy initiatives to small kindnesses, the former Republican governor is described as a dedicated and tireless public servant, a principled prosecutor and compassionate boss. Those submitting letters of support to the court include some high-profile names, like former House speaker Eric Cantor, preacher Pat Robertson and Sen. Timothy M. Kaine (D-Va.).
But there are also letters from a legion of state legislators, staffers, donors, former professors, acquaintances of McDonnell’s children and friends from high school and college. Anecdotes abound: McDonnell organized a fundraiser for a professor with cancer in law school, he paid a constituent’s rent, he visited a stranger in the hospital and comforted a low-level staffer from Newtown, Conn., following the mass shooting there.
A story related by Martin D. Brown, a former adviser to the governor on prisoner reentry issues, was typical. Brown wrote he staged a father-daughter dance at the Richmond City Jail in 2013 for the inmates. Brown wrote McDonnell not only came to the event, but brought his own daughter and stayed for the entire dance. Afterward, he spoke to a group of prisoners about their prospects after incarceration.
“The Bob McDonnell I witnessed countless times, time and time again was a man of great compassion who could relate as comfortably with a ‘tatted up’ prisoner, welfare mother or child in need of adoption, as with a member of the General Assembly or dignitary,” Brown wrote.
Many suggested McDonnell could not have knowingly taken a bribe, and some recounted stories of how he sacrificed more lucrative jobs and career paths to pursue the public good. One relayed how McDonnell turned down a position as a “rain maker” for a law firm because McDonnell didn’t feel there was enough actual work involved.
“I do not know the Governor McDonnell who bargains campaign contributions and friendship for personal favors and still to this day do not believe that Bob McDonnell exists,” wrote Bruce Thompson, a major Virginia Beach developer and McDonnell financial supporter.
McDonnell’s attorneys are pushing for U.S. District Judge James R. Spencer to sentence their client to community service, but federal prosecutors have argued that a probation officer’s recommendation of more than 10 years in prison is a more appropriate sentence.
Supporters wrote in the letters of support they were saddened, perplexed — and even bewildered in some cases — at what had befallen McDonnell. Lawyers for both Robert and Maureen McDonnell declined to comment for this story.
“The greatest tragedy in all of this is the decades of honorable work, selfless dedication to the people of the Commonwealth of Virginia and the goodness of the McDonnell family is diminished,” said Maureen Clancy, a friend of the family. “It breaks my heart and the heart[s] of countless people like me honored to call Bob and Maureen friends.”
2015
2015-01-07-WP-mcdonnells-strained-family-relationships-put-in-spotlight-at-ex-governors-sentencing
McDonnells’ strained family relationships put in spotlight at ex-governor’s sentencing
by Laura Vozzella
Washington Post, 2015-01-07
...
Maureen McDonnell, like other relatives,
cried occasionally during the sentencing.
Her sons and another daughter, Cailin Young, comforted her at times.
Another, somewhat surprising ally emerged
in the form of U.S. District Judge James R. Spencer.
He signaled that he’d had enough with the blame-Maureen defense,
a strategy that he said
showed a lack of contrition on the governor’s part.
“While Mrs. McDonnell may have allowed the serpent into the mansion,
the governor knowingly let him into his personal and business affairs,”
[Judge] Spencer said.
Spencer said that those who believed Maureen McDonnell
had “roped the governor into this predicament” were
“dangerously delusional.
...
2015-01-13-WP-judge-mcdonnell-must-go-to-prison-with-appeal-pending
Judge: McDonnell must go to prison with appeal pending
By Matt Zapotosky
Washington Post, 2015-01-13
A federal judge on Tuesday denied
former Virginia governor Robert F. McDonnell’s request
to remain out of prison while his appeal is pending —
a ruling that could put the onetime Republican rising star behind bars in less than a month.
In a three-page order, U.S. District Judge James R. Spencer wrote that
though McDonnell was neither a flight risk nor a danger to the community,
the issues in his corruption case
“do not present a ‘close’ call justifying bail pending appeal.”
McDonnell formally filed his notice of appeal on Tuesday —
a procedural step that moves the proceedings to a higher court —
but if Spencer’s order stands, the former governor
will have to report to federal prison by Feb. 9
and begin serving his two-year sentence.
McDonnell’s attorneys had argued that
while Spencer might have previously disagreed with their legal positions,
he should at least let the former governor keep his freedom
until an appeals court weighed in on the case.
In their most recent filing, defense attorneys wrote that
there were “no cases upholding convictions on comparable facts,”
and because McDonnell was sentenced to just two years in prison,
his time behind bars would “likely be nearly finished
before his appeal runs its course.”
...
2015-01-16-WP-ex-attorneys-general-ask-to-support-mcdonnell-request-for-bond-pending-appeal
Ex-attorneys general ask to support McDonnell request for bond pending appeal
By Matt Zapotosky
Washington Post, 2015-01-16
Six former Virginia attorneys general on Friday
lent their support to former governor Robert F. McDonnell’s effort
to stay out of prison while his appeal is pending,
telling an appeals court that
his conviction, if allowed to stand,
“would wreak havoc upon the public life of Virginia.”
The attorneys general —
four Democrats and two Republicans
spanning nearly three decades in office —
asked the Fourth Circuit Court of Appeals to consider their amicus brief
in support of McDonnell’s request for bond pending appeal.
...
The filing by the attorneys general is not entirely surprising;
five of the six asked the court to consider a similar brief
soon after McDonnell was charged, and were denied.
Joining them Friday was
Anthony F. Troy, a former attorney general who was appointed
to represent McDonnell in 2013 as the case unfolded
and whose own investigation found that
McDonnell gave no state contracts, awards or gubernatorial appointments
to Williams.
In their filing, the six former attorneys general argued that
the McDonnell conviction relied on
an “expansive interpretation” of federal law
that would criminalize routine political dealings.
They also suggested that some of McDonnell’s actions
might fall into the category of free speech.
In addition to Troy, those signing the brief were
Andrew P. Miller, J. Marshall Coleman,
Mary Sue Terry ,
Stephen D. Rosenthal and Mark L. Earley.
...
2015-01-26-WP-mcdonnell-to-remain-free-pending-appeal
McDonnell to remain free pending appeal
By Matt Zapotosky
Washington Post, 2015-01-26
Former Virginia governor Robert F. McDonnell will remain free
while his appeal is adjudicated —
a significant victory for the onetime Republican rising star
and a signal that a higher federal court
might see some merits in his arguments.
In a two-page order,
the U.S. Court of Appeals for the 4th Circuit ruled that
McDonnell could remain out of prison on his own recognizance
because his appeal was “not for the purpose of delay”
and
raised “a substantial question of law or fact.”
Though it is not clear which of McDonnell’s arguments resonated,
experts said the higher court must believe
at least one of the questions in his case is worth a second look.
...
It is not unusual for nonviolent offenders in white-collar cases
to be given bond pending appeal.
A U.S. district judge in Alexandria
gave former representative William Jefferson (D-La.)
the privilege in his public corruption case,
and appeals courts did so for former Alabama governor Don Siegelman (D)
and former Illinois governor George Ryan (R).
McDonnell had previously asked U.S. District Judge James R. Spencer
to let him remain free on bond while the appeals court weighed in on the case,
but Spencer rejected the request.
The arguments McDonnell raised with the appeals court were largely the same.
The former governor’s legal team asserted that
McDonnell performed no “official” acts for Williams —
a point prosecutors were required to prove —
and claimed jurors were wrongly instructed on the matter.
The defense also alleged that Spencer
did not question prospective jurors enough about pretrial publicity in the case.
And the attorneys said that, given McDonnell’s relatively short sentence,
it was possible he could serve his time only to have his conviction eradicated on appeal.
“Mr. McDonnell vigorously maintains his innocence
and is entitled to know whether he actually broke the law
before he serves his entire sentence,”
they wrote in a filing Sunday night.
The former governor’s request enjoyed a number of independent supporters:
Six former Virginia attorneys general,
the National Association of Criminal Defense lawyers
and two Harvard law instructors, one of them a retired federal judge,
filed briefs on McDonnell’s behalf.
...
2015-03-02-WP-appeals-court-brief-mcdonnell-launches-bid-to-have-corruption-conviction-thrown-out
McDonnell launches effort to have corruption conviction thrown out
By Matt Zapotosky
Washington Post, 2015-03-02
...
In his opening brief, McDonnell’s attorneys argued — as they did at the trial — that Williams got nothing meaningful in exchange for his generosity, and that McDonnell did not perform or promise to perform any “official” acts in exchange for bribes, a point prosecutors were required to prove.
The attorneys said the trial demonstrated only that “Governor McDonnell asked an aide a question, appeared at two events, suggested a meeting, and arranged a meeting” for Williams. They added that the governor’s conduct was “indistinguishable from the courtesies elected officials across the country reflexively extend to benefactors, donors, and other constituents every single day.”
McDonnell’s attorneys argued that jurors, who in the first place were not questioned aggressively enough about pretrial publicity, were also instructed wrongly on the definition of “official acts” and on the meaning of the “quid pro quo” that prosecutors were required to demonstrate — a connection between the acts and the bribes.
...
What McDonnell did for Williams — the “quo” of the illegal quid pro quo that formed the basis of the case — has long been a source of dispute, largely because the “quid” — the $177,000 in loans, vacations and luxury items — is so unflattering and hard to dispute.
The quo is more nebulous. Williams wanted state studies of his company's product, Anatabloc, and for the supplement to be included in Virginia's health plan. Neither occurred, but Williams was allowed to throw an event at the governor’s mansion during which Anatabloc was discussed, and he did get a meeting with a state health official.
McDonnell’s attorneys argued that the former governor often did little more than pawn Williams off on staffers. They said interpreting that to be criminal would allow the government “to investigate and prosecute every official who accepts contributions and makes referrals.”
“That may or may not be good policy,” defense attorneys wrote. “But Congress would have to speak much more clearly than it has spoken here to take such a revolutionary, constitutionally questionable step.”
They later wrote that “bad judgment is not always criminal” and “it was not here.”
At the same time defense attorneys presented technical arguments on legal matters, they seemed to try to give the appeals court judges a broad-strokes view of the case from McDonnell’s perspective.
They argued that the investigation unfolded in an unusually public way even before McDonnell was indicted, and the intensive media coverage was often unfavorable to the former governor. They also argued that the District Court had decided “virtually every contested motion in the government’s favor.”
The attorneys noted in particular that U.S. District Judge James R. Spencer had refused to sever the trials of the former governor and his wife and refused affidavits from the McDonnells providing evidence of why that was necessary.
“Governor McDonnell has consistently maintained that
his wife concealed many of her interactions with Williams,”
defense attorneys wrote.
“Mrs. McDonnell would have corroborated that,
but was willing to testify only if her trial was severed.”
They argued later that Maureen McDonnell’s corroboration
“would have completely changed the dynamic of a trial throughout which
the Government portrayed Governor McDonnell as a liar who threw his wife under the bus.”
Defense attorneys also argued that prosecutors delved into areas that were irrelevant and unflattering to the governor at trial. And they argued that jurors should have been allowed to hear more testimony about Williams’s generous immunity deal, which allowed him to avoid prosecution for allegedly bribing the governor and for other, unrelated crimes.
Former state attorneys general support McDonnell’s appeal
By Matt Zapotosky and Laura Vozzella
Washington Post, 2015-03-09
Former Virginia governor Robert F. McDonnell on Monday
added 44 former state attorneys general to the list of supporters
who want to see his public corruption conviction set aside,
and the group could grow larger before the day is finished.
The onetime top legal officials
who served in states and territories from Maryland to Hawaii
filed an amicus brief supporting McDonnell’s appeal,
arguing in no uncertain terms that
if his conviction is allowed to stand,
it would shake the core of U.S. politics.
“The District Court handed federal prosecutors
virtually unfettered discretion
to prosecute state officials for political courtesies and other innocent acts
that are a routine part of American political life,”
the former attorneys general wrote in the brief,
which was submitted by three lawyers at the Alston & Bird firm.
“No lunch with a lobbyist is safe.”
The brief is the third filing from an outside group to support McDonnell’s appeal.
The National Association of Criminal Defense Lawyers and
six former Virginia attorneys general
also filed briefs supporting the governor,
though theirs were less surprising,
given that they and two Harvard law instructors
had backed McDonnell’s bid to remain out of prison with his appeal pending.
...
As McDonnell did in his appeal,
the bipartisan group of former attorneys general from across the country
took aim at the notion that
the former governor performed or promised to perform
a so-called official act for Williams —
a point prosecutors were required to prove to substantiate the corruption charges.
...
The former attorneys general argued that
what McDonnell did —
arranging a meeting for Williams with a state health official and
allowing him to host an event at the governor’s mansion,
among other things —
was not tantamount to an official act under federal bribery law.
They also argued that
the court’s definition of the term to jurors was overly expansive and
would “hamstring state attorneys general and other legal officers
in their ability to advise their public-official clients
about what constitutes bribery and what does not.”
“At the very least, it empowers federal prosecutors
to charge state officials with crimes
for routine political pleasantries,
casting a fog over every dinner with a constituent or appearance at a fundraiser,”
the former attorneys general wrote.
...
2015-05-07-WP-who-were-the-twelve-people-who-decided-the-mcdonnells-fate
Who were the 12 people who decided the McDonnells’ fates?
By Matt Zapotosky
Washington Post, 2015-05-07
2015-11-16-WP-bob-mcdonnells-high-profile-supporters-urge-supreme-court-to-take-case
Bob McDonnell’s high-profile supporters urge Supreme Court to take case
By Matt Zapotosky
Washington Post, 2015-11-16
A bevy of high-profile supporters are urging the U.S. Supreme Court to throw out the public corruption conviction against former Virginia governor Robert F. McDonnell (R), McDonnell’s team announced Monday.
Eleven separate groups filed amicus briefs supporting McDonnell’s bid to have the high court review his case, among them 66 former state attorneys general, 31 governors and a collection of former high-ranking federal officials, including a retired judge, McDonnell’s spokesman announced. The filers hailed from both parties: Democratic state Sens. David W. Marsden (Fairfax) and Charles J. Colgan (Prince William) and Sen.-elect Scott A. Surovell (Fairfax), for example, joined, as did President Obama’s former White House counsel Greg Craig, the spokesman said.
The former governor had a similar collection of prominent supporters during his appeal, which was ultimately rejected.
...
2015-12-08-WP-solicitor-general-to-supreme-court-dont-take-bob-mcdonnells-case
Solicitor general to Supreme Court: Don’t take Bob McDonnell’s case
By Matt Zapotosky
Washington Post, 2015-12-08
Federal authorities urged the U.S. Supreme Court on Tuesday not to review the public corruption convictions of former Virginia governor Robert F. McDonnell, arguing that he used his office to benefit a wealthy benefactor and was rightly found guilty of breaking the law.
In a brief to the highest judges in the nation, Solicitor General Donald B. Verrilli Jr., Assistant Attorney General Leslie R. Caldwell and Department of Justice Attorney Sonja M. Ralston wrote that McDonnell’s conviction was based on the “unexceptionable proposition” that an official who takes personal benefits to influence government matters is guilty of corruption.
Digging deep into the facts of the case, the lawyers argued that the evidence at trial “amply supported” the jury’s verdict and that McDonnell’s lofty rhetoric about why his conviction should be overturned was incorrect.
“Petitioner is quite wrong to assert that the [decision] turns ‘nearly every elected official into a felon’ by criminalizing routine political fundraising,” they wrote. “The court of appeals held that petitioner’s conduct was criminal because he entered into a quid pro quo agreement to use his position to influence government matters on behalf of his benefactor. Such conduct is neither common nor protected by the First Amendment — and a decision confirming that it is unlawful breaks no new ground.”
...
2016
Virginia’s former governor faces prison over politics
by George F. Will
Washington Post Op-Ed, 2016-01-06
Supreme Court will review corruption conviction of former Va. governor Robert McDonnell
By Robert Barnes
Washington Post, 2016-01-15
The Supreme Court will decide whether former Virginia governor Robert F. McDonnell was rightly convicted of corruption for his efforts on behalf of a businessman who bestowed money and gifts on the governor and his family.
The court announced Friday that it would intervene in the long-running saga of McDonnell and his wife, Maureen, and the case provides the justices a fresh opportunity to define what kind of political conduct crosses the line into criminal behavior.
...
2016-04-27-WP-supreme-court-seems-skeptical-about-charge
Supreme Court justices seem skeptical of McDonnell’s conviction
By Robert Barnes and Laura Vozzella
Washington Post, 2016-04-27 1800 EST on-line
Supreme Court justices on Wednesday seemed highly skeptical of former Virginia governor Robert F. McDonnell’s 2014 corruption conviction for actions he took on behalf of a businessman who provided his family with more than $175,000 in benefits.
Chief Justice John G. Roberts Jr. suggested that the law used to convict McDonnell might be unconstitutionally vague. Justice Stephen G. Breyer said he worried about prosecutors having too much power in deciding when politicians cross the line from political favors to criminal acts, even if it “will leave some corrupt behavior unprosecuted.”
...
Justices Sonia Sotomayor and Ruth Bader Ginsburg voiced some support for the government’s position. Ginsburg told [McDonnell's attorney] Francisco that under his reading of the law, a government official would be able to say, “You want a meeting, pay me a thousand dollars.”
...
The McDonnells, who separated during their legal troubles and whose fractured marriage was a feature of the trial, left together in the same car.
The former governor’s sister, also named Maureen, was asked by a reporter whether the McDonnells were “friends again.”
“We’re not going to comment on that,” the governor’s sister said.
...
Supreme Court overturns corruption conviction of former Va. governor McDonnell
by Robert Barnes
Washington Post, 2016-06-27
The Supreme Court unanimously overturned former Virginia governor Robert F. McDonnell’s public-corruption conviction Monday and imposed higher standards for federal prosecutors who charge public officials with wrongdoing.
Chief Justice John G. Roberts Jr. described the former governor’s actions as “tawdry” but agreed that instructions to the jury in his case about what constitutes “official acts” were so broad, they could cover almost any action a public official takes.
...
Labels: corruption, justice
