What a circus the McDonnell trial has been so far! At some point, the judge and the jury will have to confront some serious legal issues —
- What does “theft of honest services” mean under federal bribery law?
- Does the federal bribery law require a quid pro quo?
- Suppose the government employee doesn’t actually DO anything in return for improper gifts?
- What is bribery and what is just political back-scratching?
But that point didn’t come this past week.
Other news stories and blog posts have discussed the tawdry testimony of Jonnie Williams, and the unseemly relationship between at least Maureen McDonnell and Williams; I’m not going to rehash those. But let’s talk, over this weekend, about a background issue.
The government has alleged that Bob McDonnell undertook certain actions as a public official that he only did because he was receiving loans and gifts from Jonnie Williams and Star Scientific. The indictment charges that between April, 2011 and March, 2013, Bob and Maureen McDonnell “devised … a scheme and artifice to defraud the citizens of Virginia of their right to the honest services of the Governor of Virginia through bribery…” The indictment says that the McDonnell’s goal with this “scheme and artifice” was
for the defendants to secretly use ROBERT MCDONNELL’s official position as Governor of Virginia to enrich the defendants and their family members by soliciting and accepting payments, loans, gifts, and other things of value from JW and Star Scientific in exchange for ROBERT F. MCDONNELL and the OGV [Office of the Governor of Virginia] performing official actions on an as-needed basis, as opportunities arose, to legitimize, promote, and obtain research studies for Star Scientific’s products.
You can read the whole indictment here.
What does “theft of honest services” mean? In an nutshell, it means that when we elect a Governor, we expect that when he takes official actions, he will act honestly, in what he sincerely believes is in the best interests of the Commonwealth. It means that he won’t be enriching himself by getting payment from others for doing his job.
The most recent big case dealing with “theft of honest services” fraud is Skilling v. United States, decided in 2010. Jeffrey Skilling has been the CEO of Enron, which blew up like the Hindenburg in 2001. Skilling and others were charged with a conspiracy to prop up Enron’s stock price by manipulating the financial numbers reported and by lying in public statements about Enron’s financial health. Skilling was convicted of 19 charges, including an “honest services fraud” conspiracy. The United States Supreme Court affirmed Skilling’s other convictions, but reversed his conviction for “honest services fraud” conspiracy, saying that what the government had to prove under that charge was that Skilling had either received a bribe or a kickback in return for betraying the shareholders’ trust in him, and that the government had not proven a bribe or a kickback. The Court noted that it was not enough to prove a conflict of interest, or a failure to look out for the corporation.
So here, the government must prove that Bob McDonnell received a bribe or kickback — something specific — in return for taking some official actions. To convict on the conspiracy charge, it is not enough for the government to prove that he had a conflict of interest, or that he failed to disclose loans and gifts on state disclosure forms (though that may be evidence that he knew that what he was doing was wrong).
Applying Skilling to this case, it is clear that the prosecution will try to make the jury believe that the loans and gifts constituted bribes, and that friendship or romance had nothing to do with them.
Which gets us back to the point of Jonnie Williams’ testimony (which started on Wednesday, went all day Thursday and all day Friday, spilling over to Monday morning) — did Maureen or Bob McDonnell insist on these gifts and loans in return for government action? Or did Jonnie Williams shower Maureen McDonnell with gifts for his own personal reasons?
And just what did Maureen McDonald mean when she talked about the Mineral earthquake, which she felt in Virginia, and said “I felt the earth move under my feet, and I wasn’t even having sex”? Does that sound like a business relationship?
Mmmmmmm.
