Former Virginia governor Robert F. McDonnell will remain free while his appeal is adjudicated — a significant victory for the onetime Republican rising star and a signal that a higher federal court might see some merits in his arguments.
In a two-page order, the U.S. Court of Appeals for the 4th Circuit ruled that McDonnell could remain out of prison on his own recognizance because his appeal was “not for the purpose of delay” and raised “a substantial question of law or fact.” Though it is not clear which of McDonnell’s arguments resonated, experts said the higher court must believe at least one of the questions in his case is worth a second look.
“The fact that there’s this decision rightfully gives the governor a ray of hope that his appeal may be successful,” said Jacob Frenkel, a former federal prosecutor who now does white-collar defense work at the Shulman Rogers firm.
McDonnell was sentenced earlier this month to two years in federal prison, and if the appeals court had not intervened, he would have had to report by Feb. 9. He and his wife, Maureen, were found guilty in September of lending the prestige of the governor’s office to Richmond businessman Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury goods.
Maureen McDonnell is to be sentenced Feb. 20, and now her husband will be free to attend.
In a statement released by a spokesman, McDonnell said he was grateful for the court’s ruling and would focus on his family during the appeals process.
“I plan to spend time with my new granddaughter who was born this month, attend my sons’ graduation ceremonies, and embrace family time with my daughters,” McDonnell said in the statement. “I want to thank my family, friends and legal team for their tireless support and unwavering belief in my innocence.”
Henry Asbill, McDonnell’s attorney, said, “Our client looks forward to pursuing his appellate rights and is very glad to be on bond while that occurs.”
A spokesman for the U.S. Attorney’s Office in the Eastern District of Virginia — which prosecuted McDonnell — declined to comment.
It is not unusual for nonviolent offenders in white-collar cases to be given bond pending appeal. A U.S. district judge in Alexandria gave former representative William Jefferson (D-La.) the privilege in his public corruption case, and appeals courts did so for former Alabama governor Don Siegelman (D) and former Illinois governor George Ryan (R).
McDonnell had previously asked U.S. District Judge James R. Spencer to let him remain free on bond while the appeals court weighed in on the case, but Spencer rejected the request. The arguments McDonnell raised with the appeals court were largely the same.
The former governor’s legal team asserted that McDonnell performed no “official” acts for Williams — a point prosecutors were required to prove — and claimed jurors were wrongly instructed on the matter. The defense also alleged that Spencer did not question prospective jurors enough about pretrial publicity in the case. And the attorneys said that, given McDonnell’s relatively short sentence, it was possible he could serve his time only to have his conviction eradicated on appeal.
“Mr. McDonnell vigorously maintains his innocence and is entitled to know whether he actually broke the law before he serves his entire sentence,” they wrote in a filing Sunday night.
The former governor’s request enjoyed a number of independent supporters: Six former Virginia attorneys general, the National Association of Criminal Defense lawyers and two Harvard law instructors, one of them a retired federal judge, filed briefs on McDonnell’s behalf.
The appeals court set a quick timeline for considering the case. Both sides must submit their written arguments on specific dates in March and April, and oral arguments are scheduled for May 12 in Richmond.
Those arguments will be heard by a three-judge panel — which will be selected in advance but not made public until the day of the arguments. The court’s rules demand that “every effort is made to assign cases for oral argument to judges who have had previous involvement with the case,” but that assignment is not guaranteed.
In other words, it is likely — but not definite — that the judges who gave McDonnell bond will hear his appeal. It is not clear which judges ruled on the bond request; the order is signed by a clerk on behalf of the court.
Rosalind S. Helderman contributed to this report.