(Cross posted from the Washington Post with permission of the author, Scott Peterson, who heads up the superb watchdog group, Checks & Balances Project. Personally, I’d argue that not only should what Bob McDonnell did be criminal, but that the slimy, corrupt behavior (e.g., literally in bed with a lobbyist; working for corporate whores ALEC), of many others – people like Virginia Senate Majority Leader Tommy Norment and House Speaker Bill Howell, for instance – should be criminalized as well. In short, not only does the McDonnell prosecution not go TOO far, it doesn’t go nearly far enough — that is, if you care about good, clean, transparent government that works for the people, not only the well-heeled and well-connected. — Lowell)
by Scott Peterson
Wonder why the public distrusts politicians? There’s no better example than the case of former Virginia governor Robert F. McDonnell (R), convicted more than a year ago on 11 counts of public corruption and sentenced to two years in federal prison. He is the first governor of Virginia to be convicted of a felony. Yet McDonnell remains free until the Supreme Court reviews his conviction. Considering the hand-wringing by politicians over McDonnell’s fate, the “protect your own” instinct is on full display as the political class rallies around him.
The suspension of common sense by politicians — many of them top law enforcement officials — is amazing. McDonnell and his wife, Maureen, received expensive golf outings, lavish meals, luxury vacations, sweetheart loans and a Rolex watch from Jonnie R. Williams Sr., chief executive of Star Scientific, which made tobacco-based supplements. In return, McDonnell arranged meetings with state officials, overrode objections by a cabinet secretary to include Williams at a reception for Virginia health-care leaders and gave personal product testimony to administration officials. McDonnell’s defense? His wife made him do it.
In July, in an 89-page opinion, federal appeals court judges upheld McDonnell’s conviction. Fifteen judges on the U.S. Court of Appeals for the 4th Circuit, based in Richmond, later denied McDonnell’s request for a reconsideration of his conviction.
A poll found that 68 percent of Virginia voters agreed with the conviction.
But none of that has deterred a group of former attorneys general from arguing that the favors McDonnell did for Williams were not really favors but outside the definition under federal bribery law.
McDonnell’s conviction, the former attorneys general argue, risks criminalizing “normal participation in the democratic process” because campaign contributions are considered “something of value” under federal bribery law, and the Supreme Court has acknowledged that simple “access” to public officials is beyond the reach of federal bribery law.
The problem with their approach is that federal bribery law covers any situation in which the advice or recommendation of a government employee would be influential. It does not require that the “official action” be carried out; it simply requires that a public official receive something of value in exchange for his or her “agreement.”
Ample evidence supports a quid pro quo arrangement between Williams and McDonnell — one that carried the expectation that McDonnell would influence government matters on Williams’s behalf. Williams wanted medical school research and testing done on his company’s dietary supplement products. He told the governor this, put this in writing and later testified that he lavished gifts on the McDonnell family because the governor “controls the medical schools.” Gifting in exchange for influence (or in exchange for an agreement to influence) is actionable under federal bribery law.
Even if McDonnell failed to follow through on his end, he still is guilty, as long as he secured something of value in exchange for his agreement that he would perform specific official acts.
There’s no need to litigate this with lawyer-politicians. Ordinary people know that McDonnell committed crimes.
The politicians defending McDonnell should think about the damage they are doing to whatever public trust remains. With a country full of problems, shouldn’t they find other things to do with their time? As for McDonnell, the best thing he can do is to accept his sentence — and send the right signal to others in public office.