Some criminal defense lawyers believe the federal corruption indictment against former Gov. Bob McDonnell may largely hinge on what prosecutors can or cannot prove about his intent.
Others also believe there is a legal question about whether the government has gone too far in alleging fraud.
“The whole case will come down to intent. It is not a crime to accept a gift from somebody. It is not a crime to accept a gift from somebody who does business with the state,” said Barry Pollack, a Washington lawyer.
“It’s only a crime if you do it with an improper and corrupt intent. … It all comes down to what was in Governor McDonnell’s mind when he was accepting these gifts,” he said.
Andrew McBride, a former federal prosecutor in Virginia who is now a defense lawyer, said McDonnell’s lawyers may decide “We have a good legal issue here: is this sale of the honest services of your office, or is this just good old politics 101?”
“It is not the classic purchase of the honest services of a governor,” he said of some of the allegations against McDonnell.
In corruption cases against federal, state or local officials, federal prosecutors sometimes allege “honest services” fraud, part of federal mail and wire fraud law.
Mail and wire fraud is the hook federal prosecutors use to gain jurisdiction if telephone calls, emails, traditional mail and commercial shippers are involved in an alleged crime.
Part of the law addresses schemes to defraud by depriving “another of the intangible right of honest services.” In political or government corruption cases the honest services involved are those the public expects of government officials.
Pollack said the “honest services” provision has been interpreted broadly in the past, but the U.S. Supreme Court narrowed it in 2010 in the case of Enron CEO Jeffrey Skilling, when the justices ruled the government must show there was a bribe or a kickback.
However, Pollack said the justices did not define what constitutes a bribe, and therefore it is not clear whether they meant to require a specific quid pro quo.
Pollack said some courts have interpreted the Skilling ruling narrowly to mean that there must be a quid pro quo — the bribe is given in return for an agreement that the public official perform a specific official act.
He said other courts have held it need only be shown that if someone makes a payment or gift with the expectation of some unspecified official consideration from a public official and that official accepts the gift with the understanding he was going to use his office to do something in return.
“The key question the court is going to have to resolve in Governor McDonnell’s case — and ultimately the Supreme Court is gong to have to resolve — is does that ‘something’ have to be something specific, something identified,” Pollack said.
Do both parties have to understand that in return for a gift, an official is going to take a specific action, or is it sufficient that there is just a general understanding that something will be done at some point, he asked.
He said it appears the government hopes to prove that McDonnell had an improper intent in accepting the gifts by showing a pattern of dishonesty and a pattern of trying to cover up the relationship with Jonnie Williams, then CEO of Star Scientific, and the nature of the relationship.
“For the government, all of these counts are kind of mutually reinforcing in that they show that this wasn’t a single event that can be explained away. It’s part of a pattern of conduct that demonstrates that he knew that he was doing something wrong,” he said.
For example, two of the counts allege the governor didn’t disclose a debt to Williams when applying for loans to financial institutions, straightforward allegations presumably involving paper trails.
However, Pollack, said, “I do not think Governor McDonnell is any more or less vulnerable on the false statement counts than on any other counts.”
Prosecutors often offer juries different theories of ways a defendant committed a crime.
“It is a cafeteria plan. The government hopes that if the jury does not like theory A for some reason, maybe they will buy Theory B,” Pollack said.
What the government has done, as good prosecutors do, is allege crimes that all tie together in a way that demonstrates a theme — that McDonnell was dishonest about the gifts and loans because he knew he should not be accepting them.
“I think the government’s going to anticipate, correctly, that Governor McDonnell’s defense is going to be: ‘I didn’t intend to do anything wrong, I didn’t intend to accept any gift I was not permitted to accept.’ “
Peter White, a former assistant U.S. attorney in Virginia and Washington and now a white collar criminal defense lawyer, said a problem he sees in the indictment is that it does not allege a specific, official act in exchange for the gifts.
“That’s unusual as these cases go and presents some challenges for the government. That’s the main obstacle they face,” he said.
White said, “I don’t know of another public corruption case that’s been brought recently and successfully where there hasn’t been an official act in exchange for what is alleged and I think the defense will take the position that [prosecutors] will have that obligation here, too.”
“The government may take the position they don’t, but from what I can tell that’s an untested legal theory,” said White.
McBride said he believes McDonnell’s best shot is a legal motion before the trial to convince a judge that as a matter of law his conduct did not constitute official acts and that he did not allow anyone to purchase his honest services.
“They have one pretty strong legal motion to say the government is overreaching here — they’ve taken this statute and they’ve gone too far. I mean, look, the Supreme Court reversed Skilling,” he said.
But, said McBride, “If that’s denied and he has to go to trial, I think he’s in a lot of trouble.”
Two of the charges allege that McDonnell and his wife, Maureen, conspired to obtain, or obtained “property under Color of Official Right,” violations of the Hobbs Act which is aimed at extortion, even if the extortion target consents to turning over the property.
Charles E. “Chuck” James Jr., also a former federal prosecutor who now does white collar defense work, said the Hobbs Act does not require a threat of force or violence when an official solicits or accepts a thing of value to which he is not entitled.
Speaking generally and not about the McDonnell case, James, with the Richmond office of Williams Mullen, said that if the government can prove something of value was solicited or accepted in exchange for an official act, either party may be convicted.
According to the U.S. Justice Department, the “color of official right” provision does not require that a public official take steps to induce the extortion payment because it can be said that the “coercive element is provided by the public office itself.”
Former Virginia Del. Phillip Hamilton was convicted of extortion in 2011 under the “color of right” provision in a high-profile public corruption case in federal court in Richmond.
Pollack said those two “extortion” counts strike him as, “the biggest stretch for the government.” He said that while the statute may technically apply, the McDonnells’ alleged misconduct appears far afield from the conduct the statute is intended to bar.
“Also, the idea that Governor McDonnell ‘extorted’ anything seems at odds with the government’s theory that the gifts were given willingly as part of a bribery scheme,” he said.