04/04/14: Drop corruption charges against McDonnells

This op-ed appeared in The Virginian-Pilot on the date shown.

THE U.S. JUSTICE Department’s case against former Gov. Bob McDonnell and his wife, Maureen, took a couple of hits Wednesday.

A U.S. Supreme Court decision, combined with a bipartisan brief in support of the dismissal of charges against the couple, further weakened the already weak argument that the McDonnells engaged in political corruption.

Buried in its decision in McCutcheon v. Federal Election Commission, in which the court held that aggregate donations by wealthy individuals cannot be limited, was this tidbit: “government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” Paraphrasing its earlier Citizens United ruling, the court wrote, “Ingratiation and access … are not corruption.”

It’s a pretty safe bet that the McDonnells’ lawyers will cite this decision in their upcoming trial.

The former governor and his wife were indicted in January on federal charges related to the receipt of gifts and loans from Jonnie Williams, a wealthy businessman. From the onset, the McDonnells have proclaimed that they did nothing illegal. In his remarks just after the indictment was handed down, McDonnell obliquely referred to the Citizens United ruling.

Virginia’s campaign finance laws require only that certain gifts and loans be disclosed. Until this year, there were virtually no limits on the amounts that could be received and no rule that gifts to family members be disclosed. Legislation passed last month prohibits tangible gifts of more than $250 and includes disclosures of gifts to immediate family members.

Investigations of the McDonnells under Virginia law yielded nothing. Investigators did not believe that Williams received anything of value in exchange for his gifts.

The federal government disagrees. Eleven of the 14 charges in the indictment are corruption charges. The government charges the meetings and events hosted or attended by the McDonnells constitute official acts of a public official, and that is the “something for something” — quid pro quo — that is illegal.

In a motion filed last week, the McDonnells are seeking to have those charges dismissed, arguing that what the McDonnells did for Williams were not “official acts.” Five former Virginia attorneys general agree.

On Wednesday the five — three Democrats and two Republicans — filed a brief in support of the dismissal motion. As reported in The Richmond Times-Dispatch, the former AGs argue that the federal charges represent an “expansive interpretation” of the law that, if adopted, would “criminalize many basic practices of democratic politics.”

“The former attorneys general say in their brief that none of them would have concluded that the meetings, event hosting and other acts outlined in the indictment constitute ‘official acts’ within the meaning of federal statutes at issue,” the Times-Dispatch wrote.

There is no doubt that the McDonnells exercised poor judgment in this. Poor judgment, though, is insufficient to sustain the indictment.

Regardless of the impact of Citizens United and now McCutcheon on campaign finance, their impact on the McDonnell case is unmistakable. The bipartisan support of the former attorneys general is persuasive.

The corruption charges should be dropped.