ICYMI: Drop corruption charges against McDonnells

op-edMy latest op-ed, title above, appeared in The Virginian-Pilot last Friday. In it, I talk about two things that occurred last Wednesday that may have an affect on the case against former governor Bob McDonnell and his wife, Maureen.

The first was the brief from the five former AGs, which I mentioned here. I still haven’t managed to find a copy of the brief online but it seems nearly everyone else has, because it was the topic of a number of articles across the Commonwealth, per Friday’s VANews.

The second was the SCOTUS case, McCutcheon v. Federal Election Commission (pdf). Twitter honed in fairly quickly on the part of the decision that may have a bearing on the McDonnell case:

In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit political speech speech. We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. “Ingratiation and access. . . are not corruption.” Citizens United v.Federal Election Comm’n, 558 U. S. 310, 360 (2010). They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.

Yes, the McDonnells’ lawyers are going to use this in the upcoming trial or, if they are tried separately, trials. In fact, the motion to dismiss the 11 counts of corruption already cites Citizens United.

I think the McDonnells exercised extremely poor judgment in their relationship with Williams. But I don’t believe the indictment makes the case that poor judgment is corruption. The very next paragraph of the McCutcheon case:

Any regulation must instead target what we have called “quid pro quo” corruption or its appearance. See id., at 359. That Latin phrase captures the notion of a direct exchange of an official act for money. See McCormick v. United States, 500 U. S. 257, 266 (1991). “The hallmark of corruption is the financial quid pro quo: dollars for political favors.” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985).

They key phrase in that sentence – and what the 11 counts of corruption hinge one – is “official acts.” I don’t believe the government can prove that what the governor did constituted official acts. For that reason, I think the government should drop these charges. (But not the other three charges.)

A lot of folks – on both sides of the aisle, lawyers and laymen alike – agree with me. A few folks do not. Certainly we are all entitled to our opinions. None of us gets to decide, though. That will be up to the judge.

My column appears in The Virginian-Pilot every week, usually on Thursdays. You can see the columns as they are published here, or navigate to them from the PilotOnline.com homepage by clicking on Opinion and then choosing my name at the bottom of the dropdown list. You can also see the columns by liking my Facebook page. Although my column appears weekly, I am not and have never been an employee of The Virginian-Pilot nor am I paid for my contributions to the paper.



5 thoughts on “ICYMI: Drop corruption charges against McDonnells

    1. I’m not sure if I was a judge that I’d be particularly inclined to accept their brief, either. In every other case, the decision to charge or not charge is largely up to the prosecutor, and it might not be appropriate in this case for a judge to jump in and start second-guessing the U.S Attorney just because this particular defendant is a former attorney general who happens to know five other former AGs who are willing to write on his behalf.

      And from a public policy standpoint, in the absence of any meaningful ethics reform, I kind of like the idea of putting state officials on notice that the United States will be very aggressive in pursuit of any unethical conduct that smells like corruption. Richmond’s already proven that it is utterly incapable of policing itself.


      1. Fixed that for you. 😉

        I suspected that the judge would deny the brief, just as he had denied an earlier one.

        Virginia’s ethics laws are a joke, but then again, ethics is one of those things that I think is difficult to reduce to laws. If you provide a list of things that are considered unethical, the politicians will go right up to the line. (Which, by the way, is exactly what McDonnell did in regarding the gift disclosures.) Rather than a list, I’d prefer more of a conceptual framework.

        1. I agree that it’s difficult to reduce ethics down into concrete rules, and you can’t magically transform a bad actor into a good actor simply by imposing a bunch of rules upon him. At the same time, a bunch of part-time politicians and full-time lawyers ought to keep in mind that the state bar association has some rather strident rules of professional conduct that the bar enforces precisely because the legal community cannot survive without trust. No one in his right mind would ever hire a lawyer he didn’t trust, so lawyers need precisely defined and enforceable rules to preserve a presumption of trusthworthiness on the part of the public.

          Since we don’t have the same latitude of economic choices as constituents–no one ever suggests the possibility of going four years without hiring any governors whatsoever–politicians don’t feel as compelled to self-regulate. In that case, the best we can do is have the United States Government show up and threaten to do everything they can to incarcerate the untrustworthy to the fullest extent of the law.

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