McDonnell Facing Prison Says He Was Made Easy Target Over Gifts

Former Virginia governor Robert McDonnell, facing as long as 12 years in prison for public corruption, may get out sooner if he can show that a judge made it too easy for jurors to find that he crossed the line from politics to crime.

Once seen as a potential Republican presidential contender in 2016, McDonnell, 60, already has vowed to appeal his conviction after his sentencing set for today in Richmond federal court.

McDonnell and his wife, Maureen, were found guilty of so-called honest services fraud, a favorite tool of prosecutors that was used to convict former governors in Alabama and Illinois. The law was reined in by the U.S. Supreme Court 4 1/2 years ago in the corporate fraud convictions of former Enron Corp. Chief Executive Officer Jeffrey Skilling and Conrad Black, the ex-Hollinger International Inc. chairman.

McDonnell’s lawyers have asked U.S. District Judge James Spencer to spare him from prison and instead order him to perform 6,000 hours, or about three years, of community service. An eventual appeal may test how broadly a public servant’s “official acts” can be defined in corruption cases.

While the high court said in 2010 that the honest-services laws can be applied to instances of bribery and kickbacks, McDonnell has claimed all along that nothing he did to help Star Scientific Inc.’s then-CEO Jonnie Williams promote his dietary supplement amounted to special treatment. His lawyers argue that by defining bribery to include virtually any action he took while in office, the judge allowed the jury to criminalize conduct that would otherwise be seen as politics as usual.

In supporting a sentence of about 10 to 12 years, prosecutors said McDonnell is in denial about the seriousness of his offenses.

‘Virginia Politics’

“The defendant is fond of pointing out that under Virginia law, no limits on gifts to public officials existed, and he thus claims that he was merely a ‘part of the culture of unlimited gifts that has permeated Virginia politics,’” prosecutors wrote in a memo to the judge. “But he was not convicted of accepting gifts; he was convicted of accepting bribes.”

The recommended sentencing range, which isn’t binding on Spencer, “appropriately balances the defendant’s prior good deeds with the gravity of his criminal conduct,” according to prosecutors.

McDonnell’s lawyers disagreed, accusing the government of piling on.

“With few exceptions involving exceedingly egregious conduct, public officials who have been convicted of public corruption offenses have been sentenced to terms far shorter than what the government requests here,” McDonnell’s lawyers wrote in their sentencing memo.

‘Mistakes in Judgment’

“The admitted mistakes in judgment” leading to McDonnell’s conviction “were part of a single aberrant incident in what has by all accounts been a life entirely devoted to honorable public service,” they wrote.

McDonnell’s jury was instructed by the judge any that any action he took which an official “customarily performs,” even if those deeds “are not described in any law, rule or job description,” could qualify as part of a criminal offense.

That’s “extremely broad” and vague, said Andrew McBride, a former federal prosecutor in Virginia who now practices appellate law at Wiley Rein LLP.

“McDonnell could say I did some stupid things by not disclosing gifts, but I did not veto a bill or issue an executive order,” McBride said.

Promotional Event

The official acts McDonnell performed for Williams’s benefit included pressuring state officials to study his supplement, Anatabloc, and urging them to meet with him, as well as co-hosting a promotional event for the product in the governor’s mansion, according to prosecutors.

In exchange, the McDonnells were showered with $177,000 in loans and gifts such as private plane flights, golf trips and a shopping spree for Maureen, the government alleged.

McDonnell was found guilty on Sept. 4 of 11 charges in his 13-count indictment.

Maureen McDonnell, a former Washington Redskins cheerleader, was convicted of nine of 13 counts. Her conviction on one of those counts, for obstruction of justice, was thrown out Spencer on Dec. 1. She is scheduled to be sentenced on Feb. 20.

Bribery Statute

One issue Robert McDonnell might raise on appeal is that Spencer’s instructions to the jury borrowed from a bribery statute which applies only to federal officeholders and not to state officials, said Kelly Kramer, a Washington-based white-collar defense lawyer at Mayer Brown LLP.

“The Supreme Court has always been very conscientious about this -- state officials should be governed by state laws,” Kramer said. “An official act can vary from state to state and office by office.”

McDonnell’s lawyers may have telegraphed their appeal when they asked Spencer in September to throw out the jury’s guilty verdict or to order a new trial.

Prosecutors presented an “overbroad interpretation of official act,” which if allowed to stand would lead to “criminalizing routine political courtesies,” the defense lawyers wrote.

Spencer didn’t buy it, rejecting the argument that McDonnell only gave Williams ordinary access to government officials.

“McDonnell did more than just provide access to Williams; he directed his employees to take action on research studies for Anatabloc,” Spencer wrote in a Dec. 1 ruling. “And he did so corruptly.”

Alabama Governor

McDonnell isn’t the first former governor convicted of corruption to claim on appeal that the government overreached in his prosecution.

Former Alabama Governor Don Siegelman, a Democrat, had partial success challenging a jury’s finding in 1999 that he was guilty of honest services fraud for taking a $500,000 campaign contribution in exchange for giving the contributor, then-HealthSouth Corp. CEO Richard Scrushy, a seat on a state hospital regulatory board.

While Siegelman and Scrushy, who was also convicted, persuaded an appeals court to throw out two of four counts against them based on honest-services fraud, they were unable to convince the Supreme Court in 2012 to review their case.

Former Illinois Governor George Ryan, a Republican, who was prosecuted under the honest-services law, lost his appeal in 2012 challenging his conviction and 6 1/2-year sentence. His successor, Democrat Rod Blagojevich, was also found guilty of corruption and was sentenced to 14 years in prison; he is appealing.

72 Governors

McDonnell became the first of 72 Virginia governors -- a lineage that includes Thomas Jefferson, James Monroe and Patrick Henry -- to be convicted of a crime.

More than 400 people, including televangelist Pat Robertson and University of Virginia president Teresa Sullivan, wrote to Spencer requesting that he go easy on the former governor.

Democratic U.S. Senator Tim Kaine, a former Virginia governor, noted in his request for leniency that while serving as the state’s chief executive, McDonnell restored voting rights to 8,000 felons who had served their time in prison.

The most dramatic letters came from close family members, including Jeanine McDonnell Zubowsky, the former governor’s eldest daughter, who had testified during the trial of the McDonnells about the tattered state of the couple’s marriage and about Maureen’s “mild obsession” with Williams.

Too Estranged

Defense lawyers contended during the trial that the couple was too estranged to engage in a conspiracy.

The “very punitive” sentence advocated by the government is meant to get the attention of the state’s political class, which has lagged in shoring up ethics standards, according to Bob Holsworth, a former political science professor at Virginia Commonwealth University and a Richmond political analyst.

Virginia in 2012 ranked 47th in a national integrity index compiled by the non-partisan Center for Public Integrity. It’s one of only nine states that lacks an ethics commission with enforcement powers and one of four without campaign finance limits.

Prosecutors “are trying to send an extremely strong message with these public corruption cases,” Holsworth said.

The case is U.S. v. McDonnell, 14-cr-00012, U.S. District Court, Eastern District of Virginia (Richmond).

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