A flaw in McDonnell’s defense strategy?

May 27

Given U.S. District Judge James R. Spencer’s repeated rejection of high-profile motions by former Virginia governor Robert F. McDonnell’s lawyers, we have to question his defense strategy.

The still-popular former chief executive maintains that the federal government’s corruption case comes down to his word vs. that of former Star Scientific CEO Jonnie Williams. The Justice Department claims Williams showered gifts and loans on McDonnell and his wife, Maureen, out of an expectation that McDonnell would reciprocate with official government favors benefiting Williams’s company. McDonnell denies this, much less that he agreed to any quid pro quo.

McDonnell’s lawyers argued before Spencer that whatever McDonnell may have done for Williams, every action failed to rise, as a matter of law, to an “official act” required for a federal corruption charge. Last week, Spencer dismissed their interpretation. Perhaps McDonnell’s lawyers were only making the argument to preserve a right to appeal should they lose at trial.

But another possibility remains: The former governor’s lawyers are making a fundamental strategic mistake.

Let’s assume McDonnell is telling the truth about his relationship with Williams. If so, what difference does it make whether he did any favors for Williams? Without a “guilty mind,” there can be no quid pro quo — and thus no corruption as charged.

The “official act” defense is only necessary if the jury finds the evidence undercuts McDonnell’s key claim about not having a “guilty mind.” But once that wall is breached, McDonnell’s argument becomes that of a deli owner claiming he was always careful to slice the bologna the right way.

We don’t believe a “cold cuts” defense is best for McDonnell because it would suggest a person who was consciously trying to stay a step inside of the law. It squanders McDonnell’s best asset: his reputation as a straight shooter.

His best defense, then, is to provide the jury with a credible reason why he inadvertently strayed.

Can this be done? Yes.

For nearly three decades, Williams has been renowned for making money on high-stakes, and sometimes questionable, deals. His reputation garnered big coverage from the Boston Globe back in 1988 and PBS in 2001. He is a master salesman.

But despite his rather colorful past, at no time did Williams ever seek to bribe a public official. Rather, he sought celebrity-style endorsements to support his ventures.  Having a rising political star like McDonnell on board was good for business – and Star Scientific’s stock price.

Admittedly, McDonnell’s attempt to keep Williams’s financial help secret is shameful and suspicious. He disgraced the office. But it doesn’t disprove our thesis: Williams likely set out to make use of McDonnell the way he had others before him.

There may be evidence making such an “I got used” defense impossible. We don’t know. But history points to Williams having a simple motive for getting close to the governor and first lady. It was to bask in their celebrity, not in their corruption.

Norman Leahy is an editor of the conservative Web site BearingDrift.com and producer of the political radio show “The Score.” Paul Goldman is a former chairman of the Democratic Party of Virginia. They are blogging together on All Opinions Are Local during Virginia’s 2014 General Assembly session.

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