The McDonnells, Part Two 

Virginia’s former governor and first lady have a good shot at winning their appeals.

click to enlarge Former Gov. Bob McDonnell holds a news conference in January outside the federal courthouse after his sentencing.

Scott Elmquist

Former Gov. Bob McDonnell holds a news conference in January outside the federal courthouse after his sentencing.

Mesmerizing and emotional, the six-week-long public corruption trial of former Gov. Bob McDonnell and his wife, Maureen, last summer sent a stern warning to public officials throughout the country. He was sentenced to two years in prison, she was sentenced to a year and a day.

What if it were all for naught?

With the May 12 date for Bob McDonnell’s appeal approaching, a growing range of legal experts believes that the convictions were flawed. They say the crimes for which the McDonnells were convicted could have been too broadly defined by U.S. District Judge James Spencer, who presided over their trial.

Key legal points surround what’s called honest-service fraud. That’s been defined as an official denying the public “the intangible right” of his or her honest services by taking something of value in exchange for an action.

The big question is whether that action consists of a clear-cut quid pro quo.

The McDonnells accepted more than $177,000 in gifts, loans and cash from businessman Jonnie Williams. In exchange, they helped him boost his vitamin supplement products by holding a luncheon at the Executive Mansion. Gov. McDonnell also emailed state officials asking about the status of having state universities conduct research of Williams’ products.

But did the governor do anything official for Williams?

“Everyone agrees the statutes make it criminal to exchange money for ‘official acts,’” says Jeff Bellin, a law professor at the Marshall-Wythe School of Law at the College of William and Mary. But if the official act is merely offering access, that might “criminalize a lot of routine political conduct,” he says, “making criminals out of a host of American politicians.”

John C. Jeffries Jr., a University of Virginia law professor with 40 years of experience teaching criminal law, says the problem is “how to confine ‘honest services fraud’ so that it doesn’t encompass ordinary political activity which a prosecutor chooses to condemn.” McDonnell got money “but took no legal action,” Jeffries says. He asks how that’s different from a president appointing a major political donor as an ambassador to a foreign capital.

Jeffries, along with Harvard Law School professors Nancy Gertner and Charles J. Ogletree, have filed an amicus brief with the U.S. 4th Circuit Court of Appeals in Richmond asking that the McDonnells’ conviction be overturned. They describe honest service fraud statutes as “vaguely worded,” which could allow prosecutors to “carve out a new crime” that defendants might not know they were committing.

McDonnell also is supported in filings by 44 former attorneys general from throughout the country, as well as six former Virginia attorneys general including Democrats Andrew Miller, Anthony Troy, Mary Sue Terry and Stephen Rosenthal, and Republicans J. Marshall Coleman and Mark Earley.

Maureen McDonnell, who was convicted of eight corruption charges, filed for appeal April 21. Her lawyers have sent a 101-page complaint to the appeals court saying that Spencer made numerous mistakes that made her trial unfair. Prosecutors are due to respond to the filing by May 14.

Responding to Bob McDonnell’s appeal, federal prosecutors have countered in a 93-page brief that the convictions show a clearer case of “official acts” than existed in the 2009 conviction of former Louisiana Congressman William Jefferson, who received money for arranging business deals with African officials. He hid the cash in a freezer.

Richmond political analyst Bob Holsworth says the McDonnell case is unusual because “typically appeals have little or no chance.” He says he’s been impressed with the breadth of the support for the former governor as shown by appeals court filings.

Another telling sign is that the appeals judges allowed McDonnell to go free on bond and not be jailed after his conviction. Jefferson, convicted of similar crimes, was denied bond, as was Rod Blagojevich, the former Illinois governor found guilty of 17 corruption charges in 2011.

Holsworth says that by convicting McDonnell resoundingly, the jury “was expressing a revulsion of how politics operates.” But it didn’t deal with the technicalities of the law. He says that McDonnell’s defense team was inept, adding that they “may be better appeals lawyers than trial lawyers.” S

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