Former Virginia Governor Robert McDonnell and his wife Maureen were found guilty September 4 of accepting thousands of dollars in luxury goods, an expensive vacation, and $120,000 in loans in return for using the powers and perquisites of the governor’s office to promote a local businessman’s products. Although proving a public servant took a bribe is never easy, the McDonnell conviction shows that it is not impossible. It also shows what prosecutors can do to ease their task.
The most important thing the McDonnell prosecutors did was turn Johnnie Williams, the bribe payer, into a witness for the prosecution. They did so by granting him immunity from all criminal charges arising from his actions in return for his testimony. To prove McDonnell took a bribe, prosecutors had to show that he accepted something of value with the intent to do something in return. Like many officials accused of accepting bribes, McDonnell claimed that Williams was a friend and that what he received from Williams were gifts stemming from their friendship.
Williams’ testimony severely undercut that defense. He said he did not consider McDonnell a friend and that what he did for McDonnell he did for one reason only: “It was good for my company.” He also claimed that the only reason McDonnell promoted his products was because of what he gave McDonnell. “Are you 100 percent sure that Bob McDonnell agreed to help your company because of the loans and gifts?” he was asked at one point. “I am 100 percent sure,” he answered.
Williams’ testimony by itself was not conclusive. As a matter of law, Williams could be guilty of bribing McDonnell without McDonnell being guilty of receiving the bribe. McDonnell claimed he thought his wife had bought the gifts and others were items Williams gave the wife — not him. Had the jury believed him, it would have had to acquit him.
Williams’ assertion that McDonnell had only agreed to help the company because of the loans and gifts did not end inquiry on the intent question either. Williams could no more peer into McDonnell’s head to see what McDonnell intended than could the jury. It was up to the jury to infer Williams’ intent based on all the facts and circumstances and those might have led them to conclude McDonnell lacked the necessary intent. They also had reason to take Williams’ testimony with a grain of salt. Because Williams was testifying under a grant of immunity, there was the possibility he was slanting it to stay on the prosecution’s good side.
Two things beyond Williams’ testimony helped prosecutors prove that McDonnell accepted the loans and the gifts with the requisite intent. One was that some of the actions McDonnell claimed he would have taken to help any Virginia businessman he took soon after he received something from Williams. Most damning was that six minutes after e-mailing Williams about a $50,000 loan, McDonnell e-mailed a subordinate asking him to discuss Williams’ request that conduct studies aimed at showing the effectiveness of his product.
The second thing that helped the prosecution establish intent was evidence that both McDonnell and his wife went to great lengths to hide their relationship with Williams. To avoid revealing they owned stock in Williams’ company on a year-end financial disclosure report they had to file under Virginia law, they sold the stock in mid-December and then bought it back in early January. They also adopted a questionable interpretation of Virginia law to evade disclosing the gifts Williams had given Mrs. McDonnell on the couple’s financial disclosure report.
McDonnell’s last line of defense was that the favors he did for Williams were not part of his official duties as governor. Arranging meetings for a businessman with employees of state government, inviting him to receptions at the governor’s mansion, and so forth do not appear in the statute listing the responsibilities of the governor of Virginia, and the law outlaws only the receipt of something of value in return for “the performance of [an] official act.” Here the prosecution was fortunate that a recent appellate court decision in another high profile public corruption case made it clear that an “official act” means not only those duties listed in a statute or regulation but “activities that have been clearly established by settled practice as part [of] a public official’s position.” This definition excludes actions unrelated to being governor, so that if Williams had paid McDonnell to write his will or wash his car, there would have been no violation, but is sufficient to cover the kinds of things governors often do for constituents. Indeed, by claiming that what he did for Williams he would have done for any Virginia businessman, McDonnell probably sealed his fate on the issue.
Prosecutors from jurisdictions outside the United States will envy the evidence the McDonnell prosecutors had showing the closeness in time between his receipt of loans and gifts from Williams and taking action on Williams behalf. They will also appreciate the probative value of the McDonnell’s efforts to cover up their relationship with Williams. The notion of transparency is now so firmly rooted that citizens in any country are likely to conclude that if a public official is hiding something, it is probably because he or she is doing something wrong.
Non-U.S. prosecutors will surely wish they could offer bribe payers full immunity from prosecution, as McDonnell’s did, in return for testimony against the taker. Although article 37 of the United Nations Convention against Corruption directs state parties “to consider providing for the possibility. . . of mitigating punishment of an accused person who provides substantial cooperation, in the investigation or prosecution of [a corruption] offense,” a survey of global practice suggest many countries have yet to embrace the practice. Letting criminals escape punishment in return for their help in convicting their cohorts strikes many as unseemly, but as the OECD has argued in cases involving cartels, it is essential in those circumstances where the critical evidence is in the hands of wrongdoers.
Perhaps the success of the McDonnell case will help spur laggard nations to amend their laws to provide for immunity in appropriate cases. If so, it would be one positive outcome in what is an otherwise sad and tawdry story of a public official’s betrayal of the public trust.
Glad to see you call attention to the issue of whether, or when, prosecutors can offer immunity (or a reduced sentence or other benefits) to a cooperating witness who is him- or herself implicated in a corrupt transaction. This is often critical to prosecuting not just corruption cases, but all sorts of organized crime and conspiracy cases. So far as I know, this has not been as much of a point of emphasis for anticorruption activists and reformers. Perhaps there are good reasons to resist the practice, which I (steeped as I am in the US system) do not fully appreciate?
I’d raise a similar issue about settlement (including plea bargaining). It’s standard practice in the US (in that sense the McDonnell case was unusual), but in many countries it’s frowned on or outright prohibited. It would seem hard to effectively counter a hard-to-prove crime like bribery (especially given that these cases are so resource intensive) when the prosecutors do not have the discretion to settle. But again, maybe there are good reasons for imposing limits on settlements and plea bargains in this context?
Matthew — Your comment reminded me of the rather disastrous experience the Serious Fraud Office had with the BAE plea negotiations. BAE had reached a global settlement with the U.S. and U.K. authorities, one that called for BAE to plead guilty in the U.K. (to one charge of breach of duty to keep accounting records) pursuant to a plea agreement. There was one big problem that almost derailed the entire settlement: only in 2008 was it announced that the SFO would be granted the power to negotiate pleas in complex fraud cases. In stark contrast to the United States, where pleas are at the core of the justice system, the experimentation with the SFO introduced the first formal plea mechanism in England and Wales. (For additional information, see Danielle Alge, “Negotiated Plea Agreements in Cases of Serious and Complex Fraud in England and Wales: A New Conceptualisation of Plea Bargaining,” (2013) 19(1) Web JCLI, available at http://webjcli.org/article/view/203/272.) And it wasn’t immediately clear that British courts were willing to accept this new distribution of power between the executive and the judicial branches; for example, Justice David Bean of the Southwark Crown Court made his displeasure known when he was asked in December 2010 to accept BAE’s plea agreement. This leaves me with a few important questions: (1) Why is it that plea bargaining is far less common around the world? (2) How difficult is it for countries like Britain to absorb this new mechanism? (3) How much of the imbalance in international antibribery enforcement is due to plea bargaining?