If lawyers for Robert and Maureen McDonnell can’t prevent prosecutors from accessing declarations about testimony their clients would likely give at separate trials, they won’t file the declarations at all.
That is the upshot of the latest defense filing in the federal corruption case against the former Republican Virginia governor and his wife. Responding to a judge’s recent order that the defense attorneys could only file the declarations under seal — shielding them from public view — but not keep them from prosecutors, the defense attorneys wrote that that they could not do so “without irreparably prejudicing the defendants.”
“Filing the declarations now would jeopardize the marital communications privilege, would undermine the defendants’ Fifth Amendment rights, and would give the Government an unfair ability to prepare for trial with advance knowledge of the defense case,” the defense attorneys wrote.
The McDonnells are charged in a 14-count indictment that alleges they lent the prestige of the governor’s office to Richmond businessman Jonnie R. Williams and a company he used to run, Star Scientific, in exchange for loans and gifts. Both have pleaded not guilty, and a jury trial is scheduled for July 28.
The latest bout of legal wrangling stems from the couple’s bid to have their cases separated. Their attorneys argued in filings last month that only at separate proceedings would Maureen McDonnell agree to testify — without fear of incriminating herself — that her husband was largely unaware of her dealings with Williams, and only then would Robert McDonnell be able to testify on his own behalf without his wife silencing him through marital privilege.
The defense attorneys had wanted to file the declarations detailing the couple’s prospective testimony at separate trials in an effort to support their claims.
Federal district Judge James R. Spencer’s ruling last week, though, seemed to deal a blow to that effort — forcing the McDonnells’ defense team to allow prosecutors to see the declarations, if they were filed. In their latest filing, the defense attorneys asked a judge to consider their motion to sever the cases without the declarations. And should he be inclined to deny it, they asked him to put his decision on hold “until the defendants are able to support their request with detailed information without irreparably prejudicing their trial rights.”
“The defense intends to provide such information closer to the time of trial in the event that the Court declines to grant severance now,” the defense attorneys wrote.
The attorneys did provide some hints as to what they wanted to present in the declarations. The declaration from Robert McDonnell’s attorneys, they wrote, is “an attorney-prepared summary of private conversations the McDonnells had and private emails between the McDonnells (on their private email accounts).” The declaration from Maureen McDonnell’s attorney, they wrote, is “an attorney-prepared summary outlining the testimony that Mrs. McDonnell will offer at Mr. McDonnell’s trial should the Court sever the defendants.”
The defense attorneys wrote that Maureen McDonnell’s invoking of her marital privilege prevented them from filing the declaration from her husband’s attorneys. The wrote that they could not file the declaration from Maureen McDonnell’s attorney because the information it contained was “extremely sensitive, such that disclosing it to the Government will severely prejudice Mr. and Mrs. McDonnell by revealing core elements of their trial strategy to the Government over three months before trial.”