New Revelations Say Feds Shouldn’t Indict McDonnell

By Paul Goldman

My old friend Larry Sabato, a pillar of the UVA community and deservedly so, admitted publicly what I have been writing for months now: the federal government will open up a huge can of worms especially for UVA if they indict Governor McDonnell for a Hobbs Act violation. Why? The recent revelations in a blockbuster Daily Progress article points out that over ¾ of all the appointments to the boards of Virginia’s top universities were to people who had donated money to candidates for Governor, indeed 24 of these folks had given $100K or more.

This was especially true at UVA.

“…some are virtually quid pro quo appointments rewarded for their….campaign cash given to the governor…” is how the newspaper quoted Dr. Sabato, the top political professor at UVA. His candid admission was supported by a Cornell University professor specializing in university governance.

“No governor is going to turn down his top contributor when he asks to be put on the UVA board” flatly declared Dr. Sabato on the record. He is considered the top “guru” on Virginia politics by the media and the state’s political elite. No one has come forward to refute his analysis.

ACCORDINGLY, he has unwittingly given full support to my thesis: while super bad judgment, McDonnell’s relationship with bad boy donor Jonnie Williams simply isn’t a violation of the Hobbs Act as THAT LAW WAS INTENDED TO BE ENFORCED, indeed interpreted for years by federal prosecutors in Virginia.

OTHERWISE:  We had better get the contractors working on a new jail wing for the nearest federal gulag because it is about to host the most prominent and famous people in VA. A McDonnell trial is going to have many intended consequences for a lot of people. I don’t see any utility in such a result at all.  

THAT’S RIGHT: Without realizing it – he’s not trained in the law – Dr. Sabato just said that many if not most of the appointments made to UVA and our other university boards were done in violation of the Hobbs Act in terms of plain meaning of the words. There have been complaints by experts over the years considering the expansive interpretation that could be given to the act.

So unless you believe in the theory of selective prosecution, then the same legal theory that the federales claim ensnares McDonnell extends logically to the type of appointment Dr. Sabato says is common place. Is this what we want?

Here’s why.

The Hobbs Act is based on the basic proposition that a Governor commits a crime when taking money from an individual who the Governor knows, or has reason to know, is giving the money to induce the Governor to take action otherwise he/she would not have done.

In order to save all our politicians from going to jail, the Supreme Court has ruled that a candidate for Governor, despite knowing what the donor had in mind, can still take $100K AS LONG AS no promise of specific action is made. The candidate can do the “wink, wink”, get his or her toe right up to the line, but as long as no specific promise regarding taking any government  is made there is no federal crime.

HOWEVER: The Hobbs Act doesn’t have two parts to it, one for stuff done prior to election, the other for stuff done post getting elected. It is all the same connected chain of events if you read the statute as written.

THEREFORE THE PROBLEM CREATED BY SUPREME COURT DECISION.

According to Supreme Court decision, ONCE YOU GET ELECTED, then a Governor can’t take any money from any giver – personally, through a family member or business, political PAC, whatever – when said GUV (think McDonnell) knows said giver (think Jonnie Williams) is giving said money with an expectation of receiving help from said Governor. The Hobbs Act violation doesn’t require the Governor actually take any action. The crime is committed upon taking the money under such circumstances. If the Governor actually does something, then so much the better for proving the case: but it isn’t a necessary element for the criminal conduct required.

Thus, the Supreme Court believed it had saved our political system, since they thought they had limited the Hobbs Act situation to where a SITTING GOVERNOR took the money from such a motivated donor, thus drawing a bright line between the status as a GUV candidate and a Sitting GUV after winning the election.

BUT THEY LEFT A BIG GAP.

What happens when the SITTING GOVERNOR, as a reward for the $100K campaign donation, use his or her discretionary power to appoint said giver to a GOVERNMENTAL POSITION as Dr. Sabato says is commonplace?

Read the Supreme Court logic and Hobbs Act closely: there is nothing that limits the time frame in which both the money and the appointment must mutually occur.

THUS THE MCDONNELL CASE DANGER TO UVA AND EVERYONE ELSE on board appointments. If Dr. Sabato is right – and quid pro quos are commonplace – then what he says has occurred violates the Hobbs Act. Why? Because a SITTING GOVERNOR has been INDUCED by money from an individual to give that individual an appointment when the GOVERNOR has reason to know that the money had been given with the expectation of receiving a discretionary government benefit of some kind.

THAT IS NOT PERMITTED BY THE HOBBS ACT.

The Supreme Court decisions do not wall-off this type of quid pro quo described by Dr. Sabato from violating the Hobbs Act.

Why? Because the crime is the Governor doing something HE DIDN’T HAVE TO DO – discretionary – and having reason to know that he took money from someone hoping the money would make the Governor do it. By making the appointment, the Governor has provided evidence equaling the PROBABLE CAUSE needed to get a federal indictment.

Dr. Sabato and the Daily Progress study make it plain that such is a fair inference from the facts, all that is necessary to get an indictment.

BOTTOM LINE:  Whether Uncle Sam likes it or not, Dr. Sabato makes plain what has long been considered lawful in Virginia. The Hobbs Act has been extended in recent years by federal prosecutors to reach certain state actions long thought to be controlled by state law.

In the McDonnell case, we are not dealing with the type of bribery or outright ABSCAM fraud as brought down Senator Williams from New Jersey, or the other usual cases where state officials would not act or the actions clearly required federal sanction.

Rather, we have an ethical breakdown, admittedly unprecedented in Virginia, sleazy as McDonnell concedes even worse than has yet admitted. BUT that doesn’t make it a federal crime. This is NOT a Hobbs Act violation as intended.

Jonnie Williams was a $100K campaign contributor. The Governor ran into fiscal troubles, and his wife is a grifter with his permission in this case. But as the polls show, the innate sense of the people is that this is not a case of the Governor using his power to deny people rights, wreck someone’s life, or accept flat out bribery in exchange for a quid-pro-quo. This is not a case were Virginia needs to be “saved” by the federales from us being incapable of protecting ourselves.

THIS TYPE OF SELF-DEALING NEEDS TO BE BANNED by state law ASAP.

But I am not from the “rat” school or “selective prosecution” school of fairness just because a newspaper wants a Pulitzer Prize.

Dr. Sabato has been honest, perhaps to a fault. But he told the truth. And while I am in no way compare UVA appointments to McDonnell dealings with Jonnie Williams, the law has a certain logic that must be followed or we make a huge mistake as Justice Holmes pointed out.  

The Hobbs Act, strictly construed, makes it a crime for a Governor to appoint someone to the UVA board or any Board or any position, if said action was in any way induced by that person giving a campaign contribution under the circumstances described above. Neither court decisions nor the Hobbs Act make a distinction, in terms of plain reading, from when the money inducing the action was given. Perhaps it should: but it doesn’t.  

AND SINCE THE SUPREME COURT has said it is okay for the Governor as candidate to actually discuss such an expectation with the donor, THEN LET’S NOT PRETEND OTHERWISE.

Bottom line: This is a matter for Virginians to fix, ASAP, and not a matter for selected federal prosecution. Even if, arguendo, McDonnell were therefore to benefit, then so be it, write the laws better the next time.

Once the law is fixed, and the rules of conduct absolutely clear, then those who step over the line should be prosecuted to the fullest extent possible. That will prove a powerful deterrence.

But that isn’t the case now as Dr. Sabato candidly admits. A just society therefore doesn’t retrospectively define such rules. If Uncle Sam puts Governor McDonnell on trial, the resulting revelations are going to both damage some very good people in my view, for no good reason, and the DOJ isn’t going to get a conviction anyway. A train wreck all around for Virginia.

So unless they have a real smoking gun with real bullets still inside, then let’s use the McDonnell Mess to fix the law and allow the public to set his punishment.