The indictment of Bob McDonnell is a gut punch to all who knew him, worked for him, admired and believed in him and his leadership style. Earlier today, on Twitter, I posted these ten quick thoughts on the law and politics of the case against him:
1. I was struck by the outburst of snark and schadenfreude from the chattering class on Twitter as news of the indictment broke. Whatever your policy disputes with him, Bob McDonnell played politics in a different way – thoughtful, respectful, fair – even with his opponents. The political chattering class would do well to learn to play Twitter that way, too. There but for the grace of God go we.
2. There has been much focus on the sensational facts of the indictment, but little if any focus on the law.
3. Bob McDonnell was the Governor of Virginia, elected by people of Virginia, exercising authority granted to him by the Constitution and laws of Virginia. And the conduct Bob McDonnell is accused of was entirely legal under Virginia law. For years, the Virginia General Assembly has determined that, without an express quid pro quo, no gift in any amount can corrupt or appear to corrupt a public official. Now, however, the Department of Justice apparently regards Virginia’s law as insufficient to protect the people of Virginia from the man they elected to lead them, so it’s indicting Bob McDonnell under federal law. In so doing, DOJ is substituting its policy preferences for will of the people of Virginia’s elected representatives – charging Bob McDonnell federally for legal state conduct.
4. And where is that quid pro quo? DOJ has Jonnie Williams, so if there was a quid pro quo, wouldn’t he have given it to them? But the indictment of Bob McDonnell pleads no facts proving any express quid pro quo.
5. Of course, the law on the requirement of a quid pro quo in Honest Services and Hobbs Act cases is all over the map. In some cases, it must be express. In other cases, it may be explicit, meaning it can be implied from the facts and circumstances. In campaign contribution cases, the quid pro quo generally must be express – because the underlying act is legal. In gift cases, the quid pro quo generally may be explicit (i.e., inferred) – because the underlying act usually is illegal. The McDonnell case is a gift case, but it’s more akin to a contribution case, because unlimited gifts were expressly legal under Virginia law. DOJ clearly believes it doesn’t need an express quid pro quo to convict Bob McDonnell. Expect this to be a central issue in the case.
6. Speaking of quid pro quos, how about DOJ’s deal with Jonnie Williams? And what about the former Bob McDonnell staffer who Williams actually may have offered a six-figure private sector salary to in exchange for her help? Does she have a deal with DOJ too?
7. I don’t know a single fair-minded Virginian who thinks Bob McDonnell deprived us of his “honest services,” whatever that even means. And I also don’t know anyone who thinks Bob McDonnell used his official position to EXTORT Jonnie Williams, as the Hobbs Act requires. As for the cover-up counts, I don’t think the government should be able to imprison people for covering up crimes they are acquitted of.
8. Everybody’s asking, “Is the prosecution of Bob McDonnell political?” He’s a political figure – of course it is. But that’s not the right question. The question is, “Is the prosecution fair?” From the beginning, the prosecution of Bob McDonnell has been conducted unfairly. Government agents leaking information to Washington Post reporters obtained in the course of a supposedly confidential law enforcement investigation of a presumedly innocent man? DOJ cutting deals with the alleged briber, and possibly his co-conspirator, charging Bob McDonnell’s wife as an accessory instead? Withholding evidence that is clearly exculpatory of Bob McDonnell?
9. For yrs, DOJ has said that public corruption is the federal government’s #1 domestic law enforcement priority. I get that. Corrupt politics strikes at the very foundation of our democracy & undermines the legitimacy of its government. Dishonest politicians stretch the law and push the envelope, so DOJ and the Public Integrity Section must push and stretch to keep them in check. But poor personal and political judgment are not federal crimes. The facts alleged in Bob McDonnell’s indictment reflect poorly on his personal and political judgment, but were expressly legal under Virginia law. DOJ was right to investigate this matter, but given legal state law conduct and the absence of an express quid pro quo, it should not have indicted Bob McDonnell. He has paid and will continue to pay very high price for his mistakes – shamed, disgraced, and flat broke by end of this case. He should not lose his freedom too.
10. Our adversarial justice system depends on defendants having the will and resources necessary to fight the relatively limitless will and resources of the government. Bob McDonnell faces a long, costly, draining fight versus a merciless adversary. I pray he’ll have the resolve and funding he needs to see it through.