What was a confused juror to do? The prosecutors presented so much evidence and everyone knows politicians are crooks. So the Richmond Virginia federal jury convicted Gov. Robert McDonnell and his wife Maureen of "financial gain in exchange for official acts" as U.S. Attorney Dana Boente summarized it for reporters.
Actually, the McDonnells were convicted of "conspiracy" and three counts of depriving Virginia citizens of the "honest services" of their governor; plus "conspiracy" and seven counts of obtaining property "under color of official right."
Confused? It took Judge James Spencer two hours to convince the jurors that the actual charges equaled what Boente claimed they were. As former federal prosecutor Jacob Frenkel put it, the judge's "defining an official act to be broad enough to include [even] setting up meetings likely sealed the verdict."
The "conspiracy" charges underlie the whole indictment. Back when the U.S. had a rule of law, early 20th century federal judge and legal philosopher Learned Hand was perhaps most known for opposing the use of "conspiracy" against ordinary crime, calling it the "darling of the modern prosecutor's nursery" for allowing its vagueness to lead to easy indictments.
Hand reportedly was quoted by legal and Supreme Court experts more than any other judicial authority. It was not until the 19th century that conspiracy was even considered a crime other than as an active conspiracy against the state and it was not used generally until the explosion of federal white collar crimes under the welfare state during Hand's tenure.
Hand was unsuccessful and "conspiracy" has become the catch-all for federal prosecutors to trap celebrity figures who get in the government's way. Remember Martha Stewart who was actually charged with the crime of conspiracy alone after the judge ruled out charges for an underlying crime?
With jury naiveté and prosecutorial power, she was convicted anyway. The McDonnells were accused of underlying crimes, but the Supreme Court had overruled a series of convictions on "honest services" charges in 2010 as being too vague, confirming a similar opinion in 1987. "Official right" is widely criticized as equally ambiguous.
As the defense argued, "All that Gov. McDonnell is alleged to have done for Star Scientific Inc. or its CEO Jonnie Williams [those who had supposedly received favors] was facilitate two meetings with Virginia Health and Human Resources officials [who gave Star nothing but a little of their time], make a brief appearance at a Star event in Richmond, attend a private luncheon hosted by his wife [and paid for by his PAC] at the governor's mansion at which Star announced the award of research grants to two Virginia universities, and attend a large healthcare reception at the Mansion to which his wife had invited a few Star representatives [invitations indistinguishable from those extended to thousands of other people over the governor's time in office].
"The centuries-old crime of bribery requires — as it always has — proof of a quid pro quo in the form of illicit payments made to secure official government benefits. . . . Not everything a public official does to benefit a donor is an 'official act,' however, or every photo op would be a crime."
McDonnell himself made the best argument the day he was indicted. "The federal government's case rests entirely on a misguided legal theory: that facilitating an introduction or meeting, appearing at a reception or expressing support for a Virginia business is a serious federal crime if it involves a political donor or someone who gave a gift.
"The U.S. Supreme Court rejected this radical idea and for good reason because if it were applied as the law of the land then nearly every elected official, from President Obama on down, would have to be charged with providing tangible benefits to donors." He said he gave Williams "the same routine courtesies and access to state government that I and every other governor before me afforded to thousands of individuals, companies, charities and other organizations whether they were donors or not."
Obviously, the jury did not understand. Conspiracy is so easy to prove. We all "conspire" with one another — it means agree together.
How could a married couple not have agreed together? It turned out they did not agree on many things for a long time but juror Robin Trujilio was not impressed when the eldest daughter testified to being raised in a house filled with "tension" with a depressed mother with a "mild obsession" for accuser Williams and a father devoted to career rather than family.
The couple did work together on some household matters and the evidence of "gifts" as the judge defined them was overwhelming.
The good news is this is headed to an appeals court, hopefully able to understand the real issues and banning conspiracy, honest services and official right as the prosecutors favorite abuses.
Donald Devine is senior scholar at the Fund for American Studies, the author of "America’s Way Back: Reconciling Freedom, Tradition and Constitution," and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term. For more of his reports, Go Here Now.
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