"... the broad definition of McDonnell’s actions should make other governors and politicians think twice about even their informal actions."

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The McDonnell verdict’s lesson: Politicians beware
By David Nather, September 4, 2014

A word of warning to politicians across the country: Don’t think you’re off the hook because you’re not Bob McDonnell.

The former Virginia governor’s conviction on 11 counts of corruption Thursday could send a chilling message to other lawmakers, ethics experts say, because the verdict was rooted in an unusually broad definition of what can be considered an official act that’s traded for gifts. It’s a precedent that could make it easier to go after other politicians who may think the little favors they do for others aren’t really “official.”

Sure, McDonnell’s case, which played out in federal court, may have been more colorful and brazen than the norm.

Most high-profile politicians don’t accept $50,000 loans from local business people, or $15,000 wedding gifts for their daughters, or expensive golf trips or Rolex watches. Those facts may have led some elected officials to conclude that they don’t have much to worry about because they would never do those things.

But McDonnell was convicted even though the most the prosecution could prove was that he did fairly mundane things such as setting up meetings for businessman Jonnie Williams, who was trying to promote a dietary supplement — as opposed to official acts enumerated under state laws, such as the power to appoint someone to an office.

The ex-governor’s wife, Maureen, also was convicted of several of the same charges, and their attorneys said they would appeal. Regardless, legal experts say the implications of the McDonnell verdict Thursday go way beyond Virginia, a state which has long had a reputation for lax ethics laws.

“I really cannot stress strongly enough how badly people are missing the boat if they think this is limited to Richmond,” said Chuck James, a white-collar defense attorney with Williams Mullen, a law firm in the Virginia capital. “If politicians don’t look in the mirror and question their actions after this, they do so at their own peril.”

Stan Brand, a Democratic attorney who specializes in campaign finance and government ethics, said the broad definition of McDonnell’s actions should make other governors and politicians think twice about even their informal actions.

“I think governors and others have to think, ‘Wow, it’s not just the authority that I have under the statute — it’s all the informal things that I do,’” Brand said.

The verdict could also serve as a warning to politicians not to be careless about disclosing gifts, Brand said, because even if state laws aren’t strict about disclosures, “the feds are watching, and if you don’t disclose it, they may come calling.”

Some ethics experts say McDonnell just got himself into his own unique brand of trouble.

“Arguing about whether an act is official tends to concede that there was a quid pro quo, it just wasn’t official. That is a very weak position to be in,” said Jan Baran, a GOP attorney who specializes in election law and government ethics.

And even though some Virginia Democrats want to take another crack at strengthening the state’s ethics laws, they don’t necessarily believe that even a tougher statute would have kept McDonnell out of trouble. After all, federal prosecutors came calling on the once-rising Republican even when the state had weaker laws.

“The conduct he engaged in was criminal. The jury said it was criminal. We can’t make it any more criminal,” state Sen. Donald McEachin said.

Still, the verdict in the McDonnell case clearly expanded the definition of what can be considered an official act.

To decide whether there was a clear tradeoff for the gifts, Judge James R. Spencer told the jury that they shouldn’t just consider actions that fell under McDonnell’s job description — they could consider any actions “that a public official customarily performs,” or even just something that could advance a long-term goal.

James noted that Williams was never able to testify that McDonnell or his wife ever promised him an official action in exchange for his gifts.

Instead, the case against them was built around more low-key events, such as McDonnell’s instructions to set up meetings for Williams or attending an event at the governor’s mansion that marked the launch of one of Williams’ new products. And prosecutors were unable to show that Williams got anything tangible for all the money he showered on the McDonnell family.

The conclusion politicians should draw? “Anything that’s done in your capacity as a public official can be an official act,” James said.

The verdict isn’t likely to have any bearing on the other high-profile legal investigations that have been in the news in recent months. An investigation into the possible coordination of fundraising around the recall election of Wisconsin Gov. Scott Walker is on hold, and the prosecutor has said that Walker himself is not a target. And the indictment of Texas Gov. Rick Perry alleges abuse of power, not corruption.

McDonnell’s defense team has promised to appeal the verdict, and they could get the broader definition of “official actions” overturned in the process. They didn’t give details about their strategy, but Brand said the judge’s jury instructions are the most likely grounds for an appeal: “It’s always the jury instructions.”

Baran said that even if there’s a debate over the definition, McDonnell’s actions may have crossed the line into official actions anyway.

“There can be debate about what constitutes an official act. But using government property to promote a commercial product, arranging meetings with other government officials who are subordinates and similar acts that invoke the prestige of office seem pretty ‘official’ to me,” Baran said.

Even so, Virginia lawmakers are likely to use the McDonnell verdict as a springboard for another attempt to strengthen the state’s ethics laws, which, until recently, were considered some of the weakest in the nation.

When McDonnell was governor, Virginia didn’t even limit the amount of gifts politicians could receive.

That changed earlier this year, when a new law limited individuals’ gifts to politicians to $250 a year. But there are still limits to the law — it doesn’t limit “intangible gifts” such as meals and transportation, and the limits only apply to businessmen and lobbyists doing business with the state, not friends.

Still, even that law lifted Virginia out of the bottom category of state ethics laws. As of now, 31 states, including Virginia, set dollar limits on gifts, according to Peggy Kerns, director of the Center for Ethics in Government at the National Conference of State Legislatures. Nine are considered “zero tolerance” states, banning virtually all gifts. And 10 states only require officeholders to disclose their gifts — the category Virginia was in until this year.

The new law “puts them in the majority of states,” Kerns said. States often go through a process of strengthening their ethics laws, she said, and “I can’t be critical of what Virginia did, because it was a big step.”

It probably won’t be considered big enough after the McDonnell verdict, though. Sen. Creigh Deeds — McDonnell’s Democratic opponent in the 2009 governor’s race – said the legislature should try again next year, and possibly ban all gifts.

“The ethics legislation we passed in this session didn’t do much. It was almost like we were passing something just for the sake of passing something,” Deeds said. “I think there will be more of a push to pass ethics legislation with real teeth … Virginians expect more from their state government.”

Deeds said he didn’t think most Virginia lawmakers needed to worry too much about their own actions. “I still have faith in human nature. I still think that most people who are elected to public office are doing the right thing,” he said.

Even so, the McDonnell verdict is clearly putting pressure on other elected officials – especially in Virginia – to prove that they take ethics more seriously than he did.

“As someone who has been deeply involved in Virginia politics for an awfully long time, today is a very sad day. It is sad because it has inevitably undermined the confidence that Virginians have in the integrity of our system,” said Republican Sen. Mark Obenshain, who proposed ethics reforms in his campaign for attorney general last year. “Even though there will be appeals and the case is far from over, we need to work to restore that confidence.”
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