What if Governor McDonnell is Legally Innocent?

by Paul Goldman

The editorial boards of Virginia’s major daily newspapers – the Washington Post, the Virginian Pilot, the Richmond Times Dispatch, the Roanoke Times – have already ordered the hanging: they apparently regard the trial as one of those meddlesome formalities. Rules of procedure, evidence, cross-examination, instructions to the jury about the law…such a bother!

So, as in Alice in Wonderland, they have pronounced the sentence BEFORE the trial. Off with their heads! This is not unusual for these high priests ruling over their court of public opinion. They claim to be unbiased, their editorials claim to want the truth, their edicts claim to have delayed final judgment until Governor McDonnell gets a chance to explain himself.

But long-time readers of their editorials can easily break their code. The editorial boards have decreed Governor McDonnell guilty of high crimes and misdemeanors against the body politic. They don’t really give what Brad Pitt so humorously called a “rat’s a**” (in the terrific movie Moneyball) about due process in the legal sense: trials bore them, as they would anyone who makes the rules.

Off with his head! Then, at some point later, we can decide whether the King maybe made a mistake. McDonnell is guilty in their eyes: and as the Pharaoh’s allegedly decreed “So let it be written, so let it be done!”

BUT: What if Mr. McDonnell is innocent of breaking any law?  What if he did disclose all things required? What if Mr. McDonnell is right in claiming he has only done what other Governor’s have done? In other words: Assume he is innocent of any legal wrong doing. It might not be pretty, it might not be all that ethical in general parlance, it might be not pass the “smell test” as the saying goes. It might be monumentally stupid politically.

But what if all the speculating, all the newspapers (and blogs) hinting at criminal stuff small and possibly large, turns out to be WRONG? Or as Nixon said “I am not a crook.” Okay, he was. But McD might very well not be.  

But you say: “Okay Paul, maybe he didn’t break the law per se, maybe he didn’t commit any crimes as defined in the criminal code, but surely you’ve got to admit he blew past the highway marker doing $120 Large; nothing like this in the history of Virginia. He is guilty of that, surely public corruption as used in general parlance, surely you will concede that?”

My answer: That might be a good question IF the Post and others had not been writing about the federal investigation into criminal activity. They stuck the criminal thing to him like his tan.

Whether McDonnell is Dead Governor Walking due to political fallout may be true – I think it is as a practical political matter – but of course this is derivative from the fallout of the reporting of his stuff. True, they reported on what he did, so he can’t say he didn’t do it, that he didn’t set it in motion. But the press has made it criminal in context. That’s the media’s doing, not his.

Moreover, the media knew what it was doing: using leaks (certainly not their own gumshoe detective work) to serve as stenographers for those who wanted to prosecute the Governor. We actually don’t know who they are, except that they surely have an agenda. And it wasn’t a pro-McDonnell agenda.

Just read the Hobbs Act, and it is clear where the sources claim the federales are going with this. Is it true? Are the feds really thinking criminal or is this just something the press is allowing his enemies to say?

We don’t know. I don’t blame the prosecutors. They are supposed to be aggressive here, this is what the system expects. They can’t force the press to print anything. Indeed, there is no way to know whether they leaked anything. The law says they are not supposed to do any such thing. I take them at their word.

So how does the press know there is a federal investigation into criminal conduct by the Governor? The Post, etc. can’t know for sure unless someone has broken the law. Surely, the Governor’s people aren’t saying he is being criminally investigated. Even a witness before a Grand Jury doesn’t know what the body is actually thinking.

The American revolution was a revolt against the British government, it wasn’t a reaction to a treatise by John Locke, whatever. Read the Declaration of Independence: TJ and the boys were royally pissed at the royal government. They begged the King to get off their a–es. King George refused, insultingly so.

Had King George III cut a deal, taken his foot off their necks, the boys might have stood down. TJ said as much, although maybe he and the drafters of the Declaration were just clever pols, putting the onus on King George when they were going to kick his butt to crib anyway.  

Prosecution by leak, aided and abetted by the editorial boards, has to bother anyone who believes in the American revolution. That’s not what we fought for. It might be something that can never be stopped as a practical reality. But this doesn’t mean people of good will should accept the situation without having the intellectual stones to consider whether it is right or wrong in the larger scheme of things. It matters not whether McDonnell is a sympathetic figure in that regards. Indeed better for him to be a gold digging, W—-T—- sort of guy, using his office for profit. This is when your principles are really tested.

In the end, Governor McDonnell is inconsequential. The RTD keeps calling him a “consequential Governor.” Seriously? Do you really think anyone will give him a thought in 30 years, unless he is forced to resign?  So he passed a tax or whatever. That makes a man great? What is of consequence in a society was made clear by the American Revolution: giving more people more opportunity to enjoy those inalienable rights endowed by their Creator. The great leaders leave that legacy of breaking barriers, not taxes, not clever politics issuing a little thing here or there that chips at the barriers. But rather having the guts to break it down. You might fail, but you live large.

McDonnell has done none of that. He didn’t have the guts or the belief.  

That’s the standard: this is what makes Jefferson and his contemporaries great even with their huge flaws. They got the principle right: they set the course in motion — the first ever, all those afterward having to follow the lead. That’s one heck of a legacy for a mortal person. Yes, they had huge flaws. But they still saw the light. In a way, their genius was condemning themselves, telling future generations to have more courage, to seize the opportunity, be greater than we were. You have to admire that, for all eternity.

So I repeat; What if Governor McDonnell is innocent of any legal wrongdoing? Or put it another way: Assume the federales and the state prosecutors don’t charge him with any criminal conduct, felony or misdemeanor, or any civil wrong. In that case, we actually may never know for a fact that they ever investigated him. They won’t comment either way. He would have already been hanged before the Not Guilty verdict was delivered. He would have been subjected to King George justice.

But you say: The public has the final say, they can now see through the editorial boards or whomever as the case may be. True enough, the people are smart; they understand the press can be biased, stupid, incompetent, whatever. Still, McDonnell’s reputation has already likely been ruined; it is tough to put the toothpaste back into the tube. You can tell the people to wipe it from their memories. But they can’t.

Many will feel McDonnell was guilty of a crime but beat the rap, because he is the Governor with rich friends. This is the reality, and the media knows this.  Net, Net: If the Governor is indeed innocent in the eyes of the law, then the editorial boards have hanged an innocent man.

That’s the cold reality. But in the end, the Governor has only himself to blame.