Selling influence: Bob McDonnell’s defense is “everybody does it”

Former Virginia Governor Bob McDonnell says selling influence is accepted practice in politics. The public now says "no."

Gov Bob McDonnell caricature by DonkeyHotey for Creative Commons

WASHINGTON, May 3, 2016 – The case of former Virginia Governor Bob McDonnell is again bringing the issue of political corruption to public attention.

Former Virginia Governor Bob McDonnell was convicted in 2014 of accepting more than $175, 000 in gifts and loans from wealthy businessman Jonnie Williams in exchange for promoting a dietary supplement.

Jurors who convicted McDonnell saw photos of the governor showing off a Rolex watch from Williams and looking relaxed while cruising around in a Ferrari borrowed from Williams.

An honest politician is a healthy politician

Prosecutors said that in 2011 and 2012, McDonnell and his wife, Maureen, solicited and secretly accepted $175,000 in money and luxury goods from Williams, including golf outings, vacations and personal loans. The Justice Department contended that in exchange, McDonnell agreed to have his office help Williams seek favorable actions from the Virginia state government.

McDonnell was convicted on 11 counts and sentenced in 2015 to two years in prison. Maureen McDonnell was also convicted in the bribery and corruption scheme.

What Williams wanted in return for his largesse was for researchers at Virginia state medical schools to perform extensive testing on a dietary supplement called Anatabloc, developed by his company, Star Scientific. According to the Justice Department, McDonnell raised Anatabloc in a meeting with state officials, recommended that senior state officials meet with Star Scientific executives, and held a lunch at the Governor’s Mansiin in Richmond that focused on Anatabloc.

The issue raised in the appeal to the Supreme Court is what qualifies as an “official action” under the federal bribery and honest-services fraud laws, which make it a felony to agree to take “official action” in exchange for money, campaign contributions or anything of value.

The Justice Department says that McDonnell, who was in debt at the time, agreed to use the power of his office to help Williams’ company in exchange for the gifts.

The argument set forth by McDonnell and his lawyers is, in effect, that he did nothing wrong, since all politicians act, more or less, as he did.

“Close relationships between business leaders, lobbyists and public officials,” McDonnell said in a court filing which declared that sending politicians to prison for accepting gifts from people seeking help from government would “radically reshape politics in this nation.”

Needless to say, that argument has support among other politicians, who have filed friend-of-the-court briefs supporting McDonnell.

The Republican Governors Public Policy Committee said in a brief that,

“Gov. McDonnell was convicted in part for taking actions that, in the main, are indistinguishable from actions that nearly every elected official in the U.S. takes nearly every day.”

McDonnell acknowledges performing actions on Williams’s behalf but argued that such political favors embody the access and ingratiation that politicians and their patrons naturally exchange. For there to be a crime, argues McDonnell and many in the political class who support his appeal, a politician must exercise “sovereign authority” in exchange for a bribe, such as awarding a contract.

The Justice Department says that,

“By that logic, a Member of Congress could condition the performance of routine constituent services on a $100 campaign contribution, and a governor seeking re-election could demand a $1,000 contribution—or a personal loan—as the price of any official meetings with a senior member of his administration.”

In a year when money in politics is attracting increasing attention, it is surprising to see so many politicians from both parties embracing the McDonnell theme that “everyone does it,’ and wants to keep doing it. McDonnell’s case has been embraced by Greg Craig, former Obama White House Counsel, and former Attorneys General John Ashcroft and Michael Mukasey.

Former members of Congress such as Tom Davis (R-VA), Jim Moran (D-VA) and Michele Bachmann (R-MN) have expressed support for McDonnell.

Dan Weiner of the Brennan Center, a liberal think  tank, notes that,

“What you have on McDonnell’s side is a cross-section of the so-called establishment, asking the court to adopt a particular idea of what politics is and what appropriate political conduct is….What’s extraordinary here is how out of touch that is in an election season where both the Democratic Party and the Republican Party are convulsed, so many people are going in saying what Bob McDonnell did is ordinary politics. What’s striking is how unreflective they seem to be about why we are where we are right now…Comparing $175,000 in luxury gifts to a complimentary lunch or a plaque is surreal.”

Tom Fitton of Judicial Watch, a conservative group, says that,

“I’m confused by the concern many have raised about the prosecution … McDonnell’s conduct was egregious. This wasn’t politics as usual. There was nothing that he did that was regular. Those arguments were made to the jury and the jury found them wanting.”

In Fitton’s view, a ruling for McDonnell would mean fewer corruption prosecutions at a time when there should be even more.

“Government corruption is under prosecuted. The court’s further constraining the statutes is going to lead to more unprosecuted government corruption,” he said.

Bob McDonnell was convicted after a six-week trial.

“It was not a complicated case,” notes Fordham law professor Zephyr Teachout. “Jonnie R. Williams Sr., the chief executive of a dietary supplement manufacturer…had showered the governor and First Lady with gifts in return for favors. We’re not talking a few ham sandwiches. The McDonnell’s took expensive vacations, a Rolex, a $20,000 shopping spree, $15,000 in catering expenses for a daughter’s wedding and tens of thousands of dollars in private loans.

In exchange, the governor eagerly promoted Mr. Williams’s product … hosting an event at the governor’s mansion, passing out samples and encouraging universities to do research.

There was ample evidence of connection between the favors and the governor’s actions. In one instance, Mr. McDonnell emailed Mr. Williams asking about a $50,000 loan, and six minutes later sent another email to his staff requesting an update on Anatabloc scientific research. For the jury, that was more than enough to find Mr. McDonnell guilty.”

Prof. Teachout argues that to overturn McDonnell’s conviction would be to overturn “more than 700 years of history, make bad law and leave citizens facing a crisis of political corruption with even fewer tools to fight it.”

He points to England’s Statute of Westminster of 1275, which said that no officer of the king should take any payment for his public duties except what was owed by the monarch.

The Obama-Clinton-Sanders program for a mediocre America

In 1914, the U.S. Supreme Court held that official acts included situations “in which the advice or recommendation of a Government employee would be influential,” even if the official did not “make a binding decision.”

It is interesting to see so many politicians, both Republicans and Democrats, rising to defend a clearly corrupt former governor and call for his conviction, which has already been upheld by the appeals court, to be reversed. They are clearly afraid that the “politics as usual” in which they are engaged will be endangered.

Chief Justice John Roberts of the U.S. Supreme Court said it was “extraordinary” that dozens of former White House attorneys and state attorneys general, from both parties, submitted legal papers saying that upholding McDonnell’s conviction would cripple the ability of elected officials to do their jobs.

“I think it’s extraordinary that these people agree on anything,” Roberts said.

American politics is awash in money. Politicians may say that those who contribute huge sums to political campaigns, whether that money comes from Wall Street, labor unions, Silicon Valley or elsewhere—want no special favors and rewards in return. This is hardly what our experience teaches us.

This is why the campaigns of Donald Trump and Bernie Sanders have attracted so much interest and support for their criticism of the role of money and special interests in our political life.

In the case of Bob McDonnell, the money was solicited, and what was wanted in return was made clear. And our professional political class seems inclined to embrace even this behavior.

Prof. Teachout writes that, “At the Constitutional Convention in 1787, the framers devoted themselves to building a system that would be safe from moneyed influences.  ‘If we do not provide against corruption,’ argued the Virginia delegate George Mason, ‘our government will soon be at an end.’

Today, Virginia’s former governor proposes that there is ‘a fundamental constitutional right’ to buy and sell access. If the court finds in his favor, it will have turned corruption from a wrong into a right.”

Political corruption, of course, is nothing new.  In 1833, Daniel Webster wrote the president of the Bank of the United States and said that if he wished the senator’s help against an attack on the bank, “It may be well to send the usual retainers.”

Businessmen who bribed the state legislatures that at that time elected them often purchased senators. This led Mark Twain to remark that, “I think I can and do say with pride that we have legislatures that bring higher prices than anywhere in the world.”

But while political corruption is not new, what is new is the coalition of Republicans and Democrats now asking the Supreme Court to, in effect, say that it is perfectly legal for elected officials to solicit funds from individuals with business before the government—and then intervene in their behalf.

Deciding in behalf of such behavior would have serious negative consequences for honest government in the future.

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Allan C. Brownfeld
Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.