More on McDonnell: Can We Please Get the Facts Straight?

As many GAB readers know, we’ve had quite a number of posts over the last year about the ongoing legal drama surrounding the conviction of former Virginia Governor Bob McDonnell on federal corruption charges (see here, here, here, here, here, here, and here). Last week, the U.S. Supreme Court (to my chagrin) announced that it would hear Governor McDonnell’s appeal; the Court will address only the question of whether the “official action” required for a conviction under the federal anti-bribery statutes “is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether [these statutes] are unconstitutional.”

I don’t want to spend too much time repeating my arguments as to why I think that upholding Governor McDonnell’s conviction is both the legally correct answer under existing U.S. law as it stands, and why a contrary conclusion would be a major setback for efforts to combat high-level bribery, particularly of public officials who can wield considerable influence over official decisions even without exercising the formal powers of their offices (for more on my views, see here, here, and here). Yet I continue to find myself somewhere between baffled and outraged by the mischaracterizations of what the jury and lower courts actually found, with respect to what Governor McDonnell (and his wife) did. To read the Court of Appeals opinion (which the Supreme Court will now review), and the briefs filed on Governor McDonnell’s behalf, and the various op-eds written by his supporters, is to be on two different planets.

Just to recap, the alleged bribe-payer in this case was a businessman named Jonnie Williams, the CEO of a company called Star Scientific that made a dietary supplement product called Anatabloc. Williams gave loans and lavish gifts to Governor and Mrs. McDonnell, because he wanted Governor McDonnell to use his influence to get Virginia state universities to fund and conduct expensive studies of Anatabloc (studies that, if performed, would be extremely valuable to Star), and to get the Virginia State Employee Health Insurance Plan to cover Anatabloc (also a huge boon for the company). To be clear, at this point in the case, there is no longer any question about proving a quid pro quo: The Supreme Court has agreed to hear only the legal question about whether the actions that Governor McDonnell took were “official acts”—we can now simply assume (as the jury and Court of Appeals found) that there was sufficient evidence to prove beyond a reasonable doubt that there was indeed a quid pro quo. Jonnie Williams gave Governor McDonnell the equivalent of cash (and lots of it), on the explicit understanding that in exchange, the governor would take action on Mr. Williams behalf. The only question now is whether the specific actions that Governor McDonnell took (or promised to take) count as “official acts” under the federal anti-bribery statutes.

According to the version propounded by Governor McDonnell’s lawyers (and his various supporters and quite a few hack pundits), Governor McDonnell didn’t do much of anything—and certainly nothing “official”—for Mr. Williams. On this version, Governor McDonnell’s actions “were limited to routine political courtesies: arranging meetings, asking questions, and attending events.” Governor McDonnell’s lawyers further assert that “[t]here is no dispute that Gov. McDonnell never exercised any governmental power on behalf of [Mr. Williams] … or pressured others to do so.” The first part of that statement is true: Governor McDonnell never formally exercised any official power of the Governor’s office to benefit Mr. Williams or his company. The second claim—that Governor McDonnell never pressured anyone else to exercise formal government power—is false, at least if we take as true the Court of Appeals’ conclusions as to the evidence supporting the facts found by the jury. Indeed, the Court of Appeals’ opinion below discusses at length the evidence that what Governor McDonnell’s lawyers and apologists characterize as “routine political courtesies” were in fact unusual and deliberate pressure on subordinate state officials. And even if you don’t see these actions as “pressure” (a word that doesn’t actually appear in the statute, though Governor McDonnell’s lawyers wanted it in the jury instructions), these acts certainly appear to be out-of-the-ordinary efforts to induce/encourage/cajole state officials to take specific governmental actions to benefit Mr. Williams and his company.

Admittedly, some of the things that Governor McDonnell did to get other state officials to do what he/Mr. Williams wanted, when taken on their own, might not seem like much beyond the extension of “political courtesies.” (An initial email to staff requesting a meeting with Mrs. McDonnell about running trials on Anatabloc at state universities would probably fall into this category.) But the actions of Governor McDonnell and his wife quickly escalated. The “product launch” event for Anatabloc hosted at the Governor’s mansion is an example. By itself, that might well fall into the “routine political courtesy” category. But as the Court of Appeals noted, Mrs. McDonnell explained to a staff member that one purpose of the event was to encourage state universities to do research on the product, and at the event itself, Governor McDonnell spoke to senior officials about this possibility. Though phrased (and characterized by Governor McDonnell’s lawyers) as merely “asking questions,” in context this certainly starts to seem like pressure. Again, if matters stopped there, it might be hard to find any sufficiently meaningful connection between what the Governor did and the “official act” (the funding of studies) that Mr. Williams was trying to purchase. But matters didn’t stop there. After the launch event, both Governor McDonnell and his wife repeatedly called and emailed the Governor’s Chief Counsel, telling him to “show support for” state university research on Anatabloc, to get in touch with Mr. Williams directly, and to get the state universities to respond to Star’s requests. In one of the most telling pieces of evidence that the Governor was in fact putting pressure on other state officials to take favorable action on Star’s behalf, his Chief Counsel at one point told Star’s lawyer: “I’ve been asked by the Governor to call and …. show support for this research, and I’m just – I just don’t think we should be doing it.” And if that’s not enough, in another email to the Chief Counsel, Mrs. McDonnell declared that her husband “wants to know why nothing has developed [with the state university] studies after Jonnie gave [us] $200,000…. [The Governor] wants to get this going[.]”

In addition, Governor McDonnell also pressured (but did not directly order) subordinates to include Anatabloc in the state employee health insurance plan. In this case, during a meeting with two senior officials to discuss this plan, Governor McDonnell showed these officials Anatabloc pills, said he thought they would be good for state employees, and asked them to meet with representatives from Star. If that’s not “pressuring others” to exercise state power in a particular way, I don’t know what is.

All this is laid out in the Court of Appeals’ opinion. Yet Governor McDonnell’s lawyers seem to have managed to persuade a surprisingly large number of people that Governor McDonnell did nothing out of the ordinary for Jonnie Williams. They claim: “Officials routinely arrange meetings for donors, take their calls, and politely listen to their ideas.” Yes, true, fine. But that’s not a fair or accurate characterization of the facts as found by the jury and upheld by the Court of Appeals as supported by sufficient evidence in the record. (Another line of defense is that because the hoped-for “official acts”–the studies and the inclusion of Anatabloc in the state health plan–never actually happened, there can’t have been a violation of the federal anti-bribery statutes. I think that’s legally incorrect, but I’ll put that issue aside for now.)

It’s true that when the Supreme Court hears the case, the question before the Court (putting aside the constitutional issue) will be the adequacy of the instructions to the jury. I think those instructions were sufficient, though I acknowledge that there might be room for reasonable disagreement on this point. But really, all I want to do now is to make a plea—especially to those who, unlike me, think Governor McDonnell ought to win this appeal—to be much more forthcoming about the facts of the case. If you want to argue that the federal anti-bribery statutes do not cover an executive branch official who, as part of a quid pro quo, pressures his or her subordinates to take certain official action, so long as the official never makes an overt threat–then fine, make that argument, and we can have that legal debate. If you want to argue that the jury instructions were legally flawed, such that even though the evidence might have been adequate for a properly-instructed jury to convict, this legal error requires a new trial–then fine, again, that’s a legal debate worth having. But please, for the love of all that’s good and holy, stop saying that all Jonnie Williams purchased was “ingratiation and access,” and that Governor McDonnell never did anything for him other than hosting social events, arranging meetings, and listening to his point of view. That’s just not true. This case is not about whether it’s a crime for elected officials to reward campaign donors with “access.” The case is about whether it’s a crime for elected officials to take (the equivalent of) suitcases full of cash in exchange for pressuring (or, if you prefer, “encouraging”) their subordinates to take specific government actions.

One thought on “More on McDonnell: Can We Please Get the Facts Straight?

  1. A first-rate analysis that prosecutors would do well to copy verbatim into their brief in support of the conviction. I would guess that whether what McDonnell did qualifies as “routine” or unlawful will come down to the judgment of the one Supreme Court justice with direct personal experience in similar situations: Justice Anthony Kennedy. He was a lawyer-lobbyist (as well as a law professor) before taking the bench. I would imagine his views one way or another would carry great weight with his colleagues.

    My own personal experience as an aide to different Senators is that a line was crossed. More than once I heard one of my bosses say he would do “everything” he could to help a constituent or donor and “everything” constituted writing a pro forma letter asking that the requester be given a “fair” hearing. But then again, my two former employers were considered two fine public servants with the emphasis on “public.”

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