Mimesis Law
24 May 2020

Governor McDonnell & The Ferrari: It’s Just Politics

June 28, 2016 (Fault Lines) – Virginia’s ex-governor, Bob McDonnell, caught a break when the U.S. Supreme Court threw out his corruption conviction in McDonnell v. United States. Your level of outrage will be inversely proportional to how well you understand politics.

Bob McDonnell was a rising star. The one-time Republican governor of Virginia was the party’s golden boy. He gave a response to one of Obama’s State of the Union speeches. He was floated as a running mate for Mitt Romney. Had he made some different decisions, he might be running for president right now.

Instead of enjoying the power and accolades of a political dynamo, McDonnell has been sitting around waiting for an appellate decision to determine his fate, just like any other convicted defendant. His wait ended successfully when the Supreme Court sent his case back to the lower courts. The case can be tried again, but the net the prosecutors can use is a whole lot smaller.

McDonnell’s long fall from grace began almost as soon as he was elected Governor of Virginia. One of his constituents, Jonnie Williams, was the CEO of Star Scientific, a pharmaceutical company. The two met when Williams offered McDonnell the use of his private plane to help with his campaign. In a later meeting on the private plane, after the election, Williams asked McDonnell for help with a drug his company was developing.

McDonnell agreed to help Williams’ business. He introduced Williams to Virginia’s Secretary of Health and Human Resources. McDonnell’s wife offered to help Williams with his drug company. There was a lunch for Williams’ company at the Governor’s Mansion. The Governor also set up meetings for Williams with various government officials.

At the same time, Williams was providing both gifts and loans to McDonnell and his wife. He allowed them to use his vacation home and his Ferrari. He loaned the McDonnells money, gave them gifts, and bought the Governor a Rolex. Between the gifts and the loans, Williams gave the McDonnells around $175,000.

McDonnell was indicted for “honest services fraud” and Hobbs Act violations. In non-legalese, he got in trouble for bribery. The government had to prove McDonnell committed official acts in exchange for the loans and gifts. Prosecutors alleged five specific acts McDonnell committed:

(1) “arranging meetings for [Williams] with Virginia government officials, who were subordinates of the Governor, to discuss and promote Anatabloc”;

(2) “hosting, and . . . attending, events at the Governor’s Mansion designed to encourage Virginia university researchers to initiate studies of anatabine and to promote Star Scientific’s products to doctors for referral to their patients”;

(3) “contacting other government officials in the [Governor’s Office] as part of an effort to encourage Virginia state research universities to initiate studies of anatabine”;

(4) “promoting Star Scientific’s products and facilitating its relationships with Virginia government officials by allowing [Williams] to invite individuals important to Star Scientific’s business to exclusive events at the Governor’s Mansion”; and

(5) “recommending that senior government officials in the [Governor’s Office] meet with Star Scientific executives to discuss ways that the company’s products could lower healthcare costs.”

Obviously this was unfair, because Williams probably made a fortune off of his relationship with the Governor once Virginia threw its weight behind the drug, right? Not exactly. Look at the magic verbs in the government’s allegations. “Arranging.” “Hosting.” “Contacting.” “Promoting.” “Recommending.” Williams’ company never actually got anything out of his relationship with McDonnell. In fact, to this day, it appears the company hasn’t really gotten off the ground. None of the people Governor McDonnell contacted were all that impressed by Williams and his drug, so they all blew Williams off.

In a bribery case, the government has to prove a government official took money to act on a pending matter. In McDonnell’s case, the government claimed that anything he did was “related to a pending matter.”

The Government argues that nearly any activity by a public official qualifies as a question or matter—from workaday functions, such as the typical call, meeting, or event, to the broadest issues the government confronts, such as fostering economic development. 

The government, and the district court, told the jury that any broad act by a government official would support conviction. General economic development was a pending matter, so McDonnell’s efforts on behalf of Williams were official acts affecting a pending matter. McDonnell received money from Williams. So off to federal prison for two years. Don’t take bribes. When you can argue just about anything supports a conviction, it’s not much of a surprise when you get the conviction.

The Supreme Court disagreed, holding that a government official actually has to take action on a matter before him. Setting up meetings, making phone calls, and hosting parties doesn’t really matter. That’s a grant of access, not the sale of influence.

Why can’t we send McDonnell to jail for giving a rich guy access to government? Didn’t the guy buy his way into the Governor’s Mansion? Yeah. But even the Supreme Court recognized that’s kind of how the system works.

But conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. 

You’re not going to like this next part, but guess what? “Conscientious” means “wants your support.” Plants close. Sorry your power went out, but that’s what storms do. At the end of the day, no one really cares about your problems. But your vote? Well, that’s a very different story. Your support? That might actually be worth caring about.

Maybe McDonnell cared about Star Scientific’s wonder drug. Maybe he cared about Virginia’s economic conditions. Maybe he just wanted Williams to give him his vote and his support. And Williams has a Ferrari, so he is a better guy to seek support from than most. Better than you. Sorry. Get a Ferrari and we can talk.

 

2 Comments on this post.

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  • Bryan Gates
    28 June 2016 at 11:31 am - Reply

    The reasoning behind the McDonnell ruling is sound, but it would be nice to see that kind of rigorous legal analysis applied when the defendant is not a well-connected, Caucasian, white-collar defendant. Imagine the result at the Supreme Court if these were the facts:

    “Smith was convicted of conspiracy to distribute cocaine. The facts at trial showed that, Evans, a friend of Smith’s, asked Smith to recommend that friends of his purchase cocaine from Evans. Smith also invited Evans to social gatherings that Smith hosted where Smith touted the quality and purity of his product. The evidence showed that Evans gave Smith a Rolex and paid off Smith’s car when Smith fell behind on the payments. There was no evidence that Smith ever bought or sold cocaine from Evans or that Smith acted as the “middleman” in any deal between Evans and anyone else.”

    What are the odds that Smith would get any sympathy from the Supreme Court? There might be some fancy language, but I’d bet the last word in the opinion would be “affirmed.”

  • Dawgzy
    28 June 2016 at 12:58 pm - Reply

    I might be off base with this, but would this decision affect Don Siegelman from Alabama?