Virginia has been rocked by the indictment of Robert F. “Bob” McDonnell, a former state attorney general and his wife, Maureen, on corruption charges. The couple is accused of accepting loans, gifts, vacations and the use of a private plane from Jonnie Williams Sr., CEO of Star Scientific, a Virginia-based dietary supplement company. Like many in Virginia, I was floored by the sheer size of the gifts that exceeded $140,000. For a person who clearly aspired to national office, it was not just potentially crime but just plain stupid. Yet, I did not view the indictment as overwhelming in the proof of an actual crime due to the lack of any clear use of official power or authority to benefit Williams.
The record is pretty damning of the couple which is depicted as eager to receive gifts. In one email, Maureen McDonnell writes to an aide who is concerned about an offer by Williams to buy her inaugural gown. She states “We are broke, have an unconscionable amount in credit card debt already, and this Inaugural is killing us!! I need answers and I need help, and I need to get this done.” She clearly reached the wrong answer when she later took a “rain check” and accepted free purchases from Williams on a shopping binge to New York, including $11,000 for clothes at Oscar de la Renta and $5,685 in items at Louis Vuitton and $2,604 at Bergdorf Goodman.
McDonnell is facing 14 count indictment, including charges of honest-services wire fraud, obtaining property under color of official right and making false statements to a financial institution in loan applications. The indictment alleges that the McDonnells conspired to “legitimize, promote, and obtain research studies” for Star Scientific products.” Frankly, that seems a tad weak and reminds me of the case against former Illinois Governor Rod Blagojevich. In the latter’s successful prosecution, I never saw the clear crime in the form of an actual selling of the Illinois Senate seat vacated by President Obama.
The indictment details acts that are common among politicians like attending Star company parties and allowing the Mansion to be used for a launch party. He is also accused facilitating meetings with state officials. None of that is good from an ethics or a judgment perspective, but the threshold for a crime is generally set a bit higher in my view. The most conventional claims (as least for Washington) are the coverup allegations. Those are the charges that swept the former first lady into the indictment. The government accuses her of lying to investigators and misrepresenting the source of luxury clothes. In Washington such charges are common place in scandals, often resulting in charges under 18 U.S.C. 1001 for any false statement given to investigators. Those are the charges that I would be most concerned with as a defense attorney. Even when you knock down the corruption charges on the elements of the offense, a jury can find an easy compromise verdict in these false statement allegations.
McDonnell, while expressing regret for accepting the gifts, insisted that “I did nothing illegal for Mr. Williams in exchange for what I believed was his personal generosity and friendship. I never promised—and Mr. Williams and his company never received—any government benefit of any kind from me or my administration.”
Despite the disgust that I feel in reading some of these emails and records of purchases, I still find the official acts in return for the gifts to be fairly weak. That link might be strengthened at trial and a jury is certainly not going to like the shopping trips to New York. However, after years of investigation, I expected a stronger nexus between the gifts and actual use of McDonnell’s office.