10 QUICK THOUGHTS ON U.S. v. McDONNELL
Chris Ashby, a very well respected DC area attorney,
provides a great summation of the incredibly weak indictment filed by the
federal government against Governor Bob McDonnell.
If you care about due process and fairness under the law,
take the time to read his excellent thoughts on this false indictment built
upon a discredited witness.
The Restoration Fund
First Take: U.S. v. McDonnell
Ten Quick Thoughts on the Case Against Bob McDonnell
The indictment of Bob McDonnell is a gut punch to all who
knew him, worked for him, admired and believed in him and his leadership style.
Earlier today, on Twitter, I posted these ten quick thoughts on the law and
politics of the case against him:
1. I was struck by the outburst of snark and schadenfreude
from the chattering class on Twitter as news of the indictment broke. Whatever
your policy disputes with him, Bob McDonnell played politics in a different way
- thoughtful, respectful, fair - even with his opponents. The political
chattering class would do well to learn to play Twitter that way, too. There
but for the grace of God go we.
2. There has been much focus on the sensational facts of the
indictment, but little if any focus on the law.
3. Bob McDonnell was the Governor of Virginia, elected by
people of Virginia, exercising authority granted to him by the Constitution and
laws of Virginia. And the conduct Bob McDonnell is accused of was entirely
legal under Virginia law. For years, the Virginia General Assembly has
determined that, without an express quid pro quo, no gift in any amount can
corrupt or appear to corrupt a public official. Now, however, the Department of
Justice apparently regards Virginia's law as insufficient to protect the people
of Virginia from the man they elected to lead them, so it's indicting Bob
McDonnell under federal law. In so doing, DOJ is substituting its policy
preferences for will of the people of Virginia's elected representatives -
charging Bob McDonnell federally for legal state conduct.
4. And where is that quid pro quo? DOJ has Jonnie Williams,
so if there was a quid pro quo, wouldn't he have given it to them? But the
indictment of Bob McDonnell pleads no facts proving any express quid pro quo.
5. Of course, the law on the requirement of a quid pro quo
in Honest Services and Hobbs Act cases is all over the map. In some cases, it
must be express. In other cases, it may be explicit, meaning it can be implied
from the facts and circumstances. In campaign contribution cases, the quid pro
quo generally must be express - because the underlying act is legal. In gift
cases, the quid pro quo generally may be explicit (i.e., inferred) - because
the underlying act usually is illegal. The McDonnell case is a gift case, but
it's more akin to a contribution case, because unlimited gifts were expressly
legal under Virginia law. DOJ clearly believes it doesn't need an express quid
pro quo to convict Bob McDonnell. Expect this to be a central issue in the
case.
6. Speaking of quid pro quos, how about DOJ's deal with
Jonnie Williams? And what about the former Bob McDonnell staffer who Williams
actually may have offered a six-figure private sector salary to in exchange for
her help? Does she have a deal with DOJ too?
7. I don't know a single fair-minded Virginian who thinks
Bob McDonnell deprived us of his "honest services," whatever that
even means. And I also don't know anyone who thinks Bob McDonnell used his
official position to EXTORT Jonnie Williams, as the Hobbs Act requires. As for
the cover-up counts, I don't think the government should be able to imprison
people for covering up crimes they are acquitted of.
8. Everybody's asking, "Is prosecution of Bob McDonnell
political?" Of course it is. That's not the right question. The question
is, "Is this prosecution fair?" From the beginning, the prosecution
of Bob McDonnell has been conducted unfairly. Government agents leaking info to
Washington Post reporters obtained in course of supposedly confidential law
enforcement investigation of presumedly innocent man? DOJ cutting deals with
the alleged briber, and possibly his co-conspirator, charging Bob McDonnell's
wife as an accessory instead? Withholding evidence that is clearly exculpatory
of Bob McDonnell?
9. For yrs, DOJ has said that public corruption is the
federal government's #1 domestic law enforcement priority. I get that. Corrupt
politics strikes at the very foundation of our democracy & undermines the
legitimacy of its government. Dishonest politicians stretch the law and push
the envelope, so DOJ and the Public Integrity Section must push and stretch to
keep them in check. But poor personal and political judgment are not federal
crimes. The facts alleged in Bob McDonnell's indictment reflect poorly on his personal
and political judgment, but were expressly legal under Virginia law. DOJ was
right to investigate this matter, but given legal state law conduct and the
absence of an express quid pro quo, it should not have indicted Bob McDonnell.
He has paid and will continue to pay very high price for his mistakes - shamed,
disgraced, and flat broke by end of this case. He should not lose his freedom
too.
10. Our adversarial justice system depends on defendants
having the will and resources necessary to fight the relatively limitless will
and resources of the government. Bob McDonnell faces a long, costly, draining
fight versus a merciless adversary. I pray he'll have the resolve and funding
he needs to see it through.
Labels: bob mcdonnell, DOJ, Star Scientific, VA, virginia
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