If it is true, as they tell you in law school, that bad facts make for bad law, then yesterday’s verdict in U.S. v. Robert F. McDonnell has to be one of the worst jury verdicts in the history of ever.
A Rolex. A Ferrari. Kinloch. Oscar, Louis, Armani and Bergdorf. $10,000. $15,000. $20,000. $50,000. And every last penny of it? Expressly, unquestionably legal under Virginia’s lax (read: non-existent) state laws governing gifts to public officials.
But following a brutal, extended takedown by The Washington Post, prosecutors felt compelled to bring federal corruption charges. And following five weeks of testimony in which a spread of luxury goods was laid in front of a jury alongside the sad, sad details of a dying marriage, the jury obviously felt compelled to convict.
As a young trial lawyer, a mentor once told me that a jury verdict is the most unpredictable thing there is in all of law—so unpredictable that it is to be avoided at almost all costs.* (Of course, given the jury instructions on the critical issues of quid pro quo and official act in this case, this verdict was entirely predictable, and the jury would have been a rogue jury had it not convicted Governor McDonnell on all corruption counts.)
What’s more, jury verdicts sometimes make no sense. Juries don’t have to explain or defend their verdicts, and even if they did, it is unlikely that they could do so to the satisfaction of any trained legal mind in all but the simplest of cases. So we have an appellate system to fix what juries and trial judges got wrong.
I hate this verdict and hope every conviction on every count is overturned on appeal. In the meantime—and regardless of what happens on appeal—there also is much to be learned from this case by politicians and those who seek to influence them, however softly or indirectly. These four lessons should last far longer than the underlying verdict deserves to stand:
1. Make no new friends.
When news of the relationship between the McDonnells and Jonnie Williams first broke, the McDonnells maintained that Jonnie Williams was their friend. By the time he slithered to the witness stand—under not one but two grants of immunity from prosecution for a host of alleged frauds—to accuse the McDonnells of taking his bribes, they had learned an awful lesson: There are no new friends in politics, only old ones.
Testimony at trial revealed that the Governor and his advisers had considered what constituted “friendship” when the Governor was preparing a financial disclosure report that permitted him to omit gifts from “friends.” One adviser correctly told him, “I don’t think there’s actually any law defining what a personal friend is.” Like a standardized test with more than one “right” answer, however, another adviser more correctly told him, “those persons you knew prior to running for attorney general” would be a good dividing line.
Early in my political career, I worked for a state legislator who was surprised, following his re-election loss, by just how many of the new friends he had made during his term of office stopped dropping by to see him, returning his calls, and offering him tickets to events. In the course of running for, winning and holding office, politicians meet many great, helpful people. The higher they climb, the more great, helpful people they meet. The more sophisticated and subtle those great, helpful people can become. And the more likely it is that they will disappear the minute you leave office.
I often advise clients that the time to be friends with “friends” like Jonnie Williams is after you leave office. Until then, the relevant questions are: Does your friendship pre-date your public service? Did you and do you still celebrate special occasions and spend holidays and vacations together? Do you know the names and ages of their children? Are your children friends? What do you talk about when you spend time together—politics and business, or the good old days and the weather? Have they ever asked you for a favor? Do you split or take turns picking up the tab or bill? Does your friend submit the bill for reimbursement or write it off as a business expense?
2. Keep your friends close, and your donors at arm’s length.
On this point, the jury instructions in the McDonnell case were frighteningly overbroad. In essence, the judge instructed the jury that a public official has been corrupted when he or she takes something of value from someone, knowing that the person wants something—even if he or she doesn’t intend to provide it, in fact doesn’t provide it, would provide it for anyone else who has asked, or in fact has provided it to donors and non-donors alike, no matter how worthless the thing may seem or be.
No more “to the victor goes the spoils.” Combined with the expansive definition in the jury instructions of “official act”—virtually anything a public official does, including matters that are “clearly established by settled practice as part of public office”—this new rule has the potential to exclude donors from routine aspects of political life. Indeed, there are many times when a candidate or elected official accepts many thousands of dollars in campaign contributions knowing exactly what the donor wants. Sometimes, it is printed on the event invitation—a picture with the candidate, or lunch and a briefing with a policy adviser. Other times, it is unstated but obvious—reappointment to a board or commission. Does anyone think that at least some of these donors to the Obama campaign didn’t want anything at all when they maxed out to the campaign and national party committees, and then bundled hundreds of thousands of dollars more in contributions from their friends and associates, only to be “shocked, shocked!” when President Obama appointed them to be ambassadors?
As explained in #4 below, there is a very important reason why I do not think this will be the practical effect of the McDonnell verdict, but I do think it is the logical extension of the theory of the case. “D” is the new scarlet letter of politics.
3. Have a “No Man.”
Evidence introduced in the McDonnell trial indicated that the Governor may have kept some aspects of his relationship with Williams hidden from his staff. Evidence also indicated that, even with limited knowledge, some staffers had begun to question the appearance or appropriateness of the relationship—staffers who, had they known the full nature and extent of the relationship, likely would have had the same reaction that nearly everyone outside the so-called “Third Floor”+ bubble had when news of the situation broke.
But there was no evidence that any of those staffers were heeded. To the contrary, it seems as if they were worked around or just straight run over.
It has become cliché for politicians to bemoan the loss of their private lives. It also has become cliché for the public to bemoan the corrupting power of public office over even a man as honorable as Bob McDonnell. But clichés become clichés because they are, for the most part, true. Corruption can take many forms and has many causes—including not only “selling out” for money, but also losing good judgment and proper perspective by becoming worn down over time from the daily grind and relative isolation of public office, especially high office.
The manager of the first political campaign I ever worked on had this deal with the candidate: “You can’t fire me, and I can’t quit.” Any holder of high office needs one person who knows absolutely everything there is to know about the officeholder, keeps confidences and passes no judgment, and can say “no” when the officeholder can’t or won’t do it him- or herself. If only someone could have stopped the Jonnie Williams “gravy train” before it wrecked Governor McDonnell’s administration and now, his life.
4. Degree matters.
Most often, the underlying act in a public corruption prosecution is illegal. When we think of corrupt politicians, we think of suitcases of money in hotel rooms, vacations disguised as conferences, free home renovations and additions—all hidden from public view and unlawful under the law of the prosecuting jurisdiction. When the underlying act is illegal, the corrupting influence of the act is all but presumed.
The McDonnell case may be the first—certainly, the highest profile—major public corruption case arising out of the provision of gifts that were completely legal in both nature and amount. And on that point, there is one particular point of law that I think has been underappreciated, if not lost, in most of the commentary and analysis about the case: As a matter of law, there is little distinction between the lawful gifts in the McDonnell case under Virginia law, and lawful campaign contributions in any other jurisdiction.^
As a matter of fact, however, there is a huge distinction—the luxurious nature, sheer volume and monetary value of the gifts. Wealthy individuals and moneyed interests have been providing things of value—“gifts”—to public officials in Virginia for decades. Mostly fancy dinners and trips, worth in some cases several thousands of dollars, year in and year out, for decades, all publicly disclosed.
So an early contention of the McDonnell defense team was, in essence, “everybody’s doing it.” But not like this. The watch was a Rolex, not a Seiko. The car was a Ferrari, not a Ford. The stores were high-end, not mass market, and the clothes were designer styles, not mall styles. The golf was at Kinloch, not Belmont. The wedding presents were cash, not registry gifts. And all of it was from one source.
It’s hard to imagine that prosecutors could have brought or won this case if Williams’ only gifts had been, say, the use of his lake house and a ride in his Ferrari. That case truly would have been like probably hundreds of other cases involving many prior Virginia governors who have traveled in their campaign donors’ planes, vacationed in their second homes, and golfed at their country clubs. Even the weekend getaway to Cape Cod is indistinguishable from other trips regulated Virginia corporations have provided to legislators on committees of jurisdiction every year for many years.
But all of it together—the cash, the loans, the gifts, the travel—all $177,000 of it? Shocking. Not illegal, but still shocking—even to those of us who have worked in Virginia’s no-limits, anything-goes-with-full-disclosure system of government ethics for years. As it turns out, even a no-limits system has its limits.
And I think that is what in practice will keep the verdict in this case—if it is upheld—from criminalizing routine interactions between politicians and the donors who finance their campaigns. Donors will still donate, bundlers will still bundle. They will meet with government bureaucrats and get their pictures taken with elected officials. Governors will still appoint them to state boards and commissions, and presidents will still appoint them to be ambassadors or maybe even Commissioner of the IRS.
It is all a matter of degree. Somewhere between Jonnie Williams’ first gift and his last gift was a line. It’s hard to say even now where the line was in this case—but the jury didn’t have to, because they had no doubt it had been crossed.
* But not—I think—at the cost of admitting a felony you did not commit and resigning your office in disgrace. And especially not when The Washington Post already has indicted, tried and convicted you. There has been much second-guessing Governor McDonnell’s decision to reject a deal in which he would have pleaded guilty to a single non-corruption-related felony count. Under the circumstances, and on the state of the law as the Governor and his attorneys understood it, I don’t think you can blame him for deciding he had no choice but to seek to be exonerated by a jury of his peers.
+ The “Third Floor” is the term Virginia politicos use to refer to the Office of the Governor, which is housed on the third floor of the State Capitol building.
^ The principal distinction I see between the lawful gifts in the McDonnell case and lawful campaign contributions in any other case is the directness of the personal benefit—but I’m not sure that distinction makes any difference under the prosecution’s theory and the jury instructions of the McDonnell case. For instance, I believe the government still would have brought the case if Jonnie Williams had given $170,000 to the Governor’s PAC, instead of to his family.