Either one, or both, could help win acquittal for former Virginia governor Bob McDonnell and his wife.
But lawyers following the trial in Richmond say the prosecution has presented a strong case, albeit without a “smoking gun,” and it will take a lot from the defense to blunt it fully.
“The government has got to be pleased with the way the case has gone so far,” Scott Fredericksen, a former federal independent counsel who now practices white-collar defense, said.
Prosecution witnesses, including pushy but generous businessman Jonnie R. Williams Sr., “seem to have come off well under cross-examination,” Fredericksen said.
We have yet to hear the defense, of course. But even if Bob and Maureen are found not guilty of the principal corruption counts, they remain vulnerable on less dramatic but still serious charges of making false statements to banks and obstruction of justice.
“I think they really have a problem with some of these secondary counts, particularly the bank fraud,” Andrew G. McBride, a former federal prosecutor and Justice Department official, said.
The purported tensions in the couple’s marriage and Maureen’s erratic behavior have understandably dominated the headlines.
Under the law, however, Bob McDonnell’s guilt or innocence on the main charges should be decided primarily by the challenging question of “what was he thinking” when he took gifts and loans from Williams.
If he accepted the bounty with the intent of doing official favors for Williams, then the jury should find McDonnell guilty because he had “corrupt intent.”
“This case comes down to motive, intent, purpose, knowledge,” University of Virginia criminal-law professor Anne Coughlin said.
The prosecution appears to have demolished the idea that Williams bestowed such beneficence out of friendship. He testified it was entirely a business proposition for him, to get help promoting his nutritional product, Anatabloc.
But the defense still has an out by arguing that McDonnell accepted the gifts and loans while privately intending to do nothing out of the ordinary for Williams.
Here, the government’s case has shortcomings. It doesn’t have an e-mail, text message or other physical evidence in which Bob McDonnell says, “I’ll do this if you’ll do that.”
Also, the “official acts” performed in the alleged quid pro quo were less than overwhelming.
This case has plenty of “quid,” including a Rolex watch, luxury vacations and $120,000 in sweetheart loans.
The “quo,” however, consists mainly of increased access for Williams and a product launch at the governor’s mansion. No state contracts, or even the government-funded research that Williams sought.
Nonetheless, the prosecution has made three potentially compelling arguments to overcome the gaps in its claims.
First, there are several instances of highly suspicious timing.
In one, Williams was allowed to invite 25 guests to a state health-care leaders reception held on the same day that he met Bob McDonnell to discuss loans.
In another, just six minutes after e-mailing Williams about a $50,000 loan, Bob McDonnell sent a note to a staffer asking to discuss possible state studies of Anatabloc.
Second, Health Secretary Bill Hazel testified Thursday that government favors done for Williams were unusual and went beyond what typically was done for a Virginia company.
Third, there’s evidence that Bob McDonnell sought to hide his relationship with Williams. On a disclosure form, he indicated a loan from the businessman was related to medical services. He allowed his communications director to mislead the press about how the businessman paid the notorious wedding catering bill.
That could play badly with a jury.
“Common sense tells you that people conceal things when they think they are doing something wrong,” McBride said.
What about the juicy stuff regarding the marriage?
The defense seems intent on destroying Maureen’s personal reputation in hope of salvaging Bob’s professional reputation as a straight-shooter.
If Maureen was tawdry and unstable, then it could explain why she connived with Williams and kept Bob in the dark.
But it’s well established that Bob knew about most of the loans, the vacations and the catering bill.
The defense also hopes to prove that the couple was barely on speaking terms, so how could they conspire?
That argument suffered with testimony from former employees and friends that the couple seemed fine. Former governor’s mansion director Sarah Scarbrough called them “a very happy, in-love couple.”
Those were the days.
For previous columns, go to washingtonpost.com/mccartney.