RICHMOND — The prosecution of former Virginia governor Robert F. McDonnell could have far-reaching effects on federal public-corruption cases — making it easier for prosecutors to bring charges against those accused of abusing their official powers, legal experts said.
The convictions of McDonnell and his wife, Maureen, on several counts of public corruption Thursday are historic in their own right, bestowing upon the onetime Republican rising star the unwanted distinction of being the first governor in Virginia history to be found guilty of a crime. But legal experts say the case — especially if it survives an appeal — could encourage prosecutors to pursue similar charges against officials who take not-so-obviously significant actions on behalf of their alleged bribers and make it easier for them to win convictions.
“I think the case clearly pushes the boundary of ‘official act’ out a bit farther, and I think that’s quite potentially important,” said Patrick O’Donnell, a white-collar criminal defense lawyer at Harris, Wiltshire & Grannis. “It’s striking that here, McDonnell was not convicted on any traditional exercise of gubernatorial power. It wasn’t about a budget or a bill or a veto or appointment or a regulation.”
The McDonnells stand convicted of conspiring to lend the prestige of the governor’s office to Richmond businessman Jonnie R. Williams Sr. in exchange for $177,000 in gifts, vacations and sweetheart loans. During the six-week trial, prosecutors presented a compelling case that the former governor and his wife helped Williams in exchange for his largesse by arranging meetings for him with state officials, allowing him to throw an event at the Virginia governor’s mansion and gently advocating for state studies of a product that Williams’s company sold.
The case drew national attention in no small part because of the couple’s claim that their marriage was too broken for them to conspire . But at the heart of their defense was a more legally important assertion: They argued that what they did for Williams did not constitute an “official act,” nor was it part of any corrupt bargain with the businessman. (The former governor testified that he did not even know what Williams wanted.)
Prosecutors had to prove both points to win convictions. Now they’ll have to withstand an appeal likely on the same grounds — with many across the country watching closely.
“I think politicians take notice to these sorts of things,” said Kelly Kramer, a white-collar criminal defense lawyer at Mayer Brown. “I think people will pay even more attention than they already did to what they’re accepting and from whom.”
The McDonnell case is somewhat atypical because what the McDonnells did for Williams is not immediately obvious as an official act, legal experts said. Even before the trial, the McDonnells’ attorneys argued that Williams was afforded only routine courtesies and that defining those as official acts would effectively criminalize common political interactions across the country.
Prosecutors’ decisive victory — McDonnell was convicted of all 11 public corruption counts he faced and acquitted of two bank-fraud charges — might spark similar cases elsewhere, experts said.
The Justice Department’s Public Integrity Section notably has received attention lately for tackling high-profile cases.
“When prosecutors win a conviction as overwhelmingly and as quickly as they did in this case, it does embolden prosecutors,” said Jacob Frenkel, a former federal prosecutor now at the Shulman Rogers firm. “When the government sees success with a theory line or prosecutorial strategy, that gets noticed.”
U.S. Attorney Dana J. Boente and attorneys for the former governor could not immediately be reached. Maureen McDonnell’s attorney declined to comment.
The McDonnells’ attorneys — who have said they will appeal — are likely to first request that U.S. District Judge James R. Spencer set the verdict aside, experts said. Then they will turn their focus to the couple’s Jan. 6 sentencing, trying to shape the guidelines that Spencer will use to determine how long the McDonnells should spend in federal prison.
Each charge of which the McDonnells are convicted carries a maximum sentence of 20 years in prison, although experts say sentences of multiple decades are unlikely. Matthew G. Kaiser, a white-collar lawyer at the Kaiser Law Firm, said the former governor is likely to face a sentence of at least eight to 10 years. That’s because of his position in government and because he was convicted of taking multiple bribes, Kaiser said. Kaiser said the sentence could be more severe if prosecutors can prove that McDonnell lied under oath during his nearly 24 hours of testimony.
His wife is likely to face about five years, Kaiser said. Both she and her husband are free at least until their sentencing, and possibly longer.
The McDonnells cannot appeal their conviction until they are sentenced. But that appeal is likely being drafted now, with a focus on the term “official acts,” experts said.
Spencer’s interpretation of the phrase was broad, and experts say that if it is upheld, it could be repeated in corruption cases for years to come. The judge told jurors to consider an official act “any decision or action on any question, matter, cause, suit or controversy, which may at any time be pending or which may by law be brought before any public official, in such public official’s capacity.” It could include, he said, any act “that a public official customarily performs” even if it was not prescribed in law, and it could be one in a series of steps toward some ultimate end.
Spencer seemed to be relying on similar instructions that were given to jurors deciding the 2009 corruption trial against former congressman William J. Jefferson (D-La.) — which experts are quick to note set a framework for defining “official acts.” But the McDonnell case, O’Donnell said, “continues to push it.” And the McDonnells’ attorneys will probably argue to an appeals court that in the governor’s case, the term should have been defined more narrowly, said Barak Cohen, a former federal Public Integrity prosecutor now at the Perkins Coie firm.
“The defense is going to say it’s way too broad,” Cohen said. “If ‘official acts’ were defined differently, we may have had a different verdict.”
There are, of course, other points defense attorneys can raise in their bid to convince an appeals court that there were errors at trial. They might argue, for example, that the evidence did not prove official acts were taken — even in light of Spencer’s instruction. They might argue that Spencer improperly blocked them from calling witnesses, especially a former state official who they wanted to testify about common practices of government. And they might argue that Spencer should have granted their request to have separate trials for Robert and Maureen McDonnell.
The appeals process, experts said, generally lasts months. They said the McDonnells will probably request to remain out of jail until their appeals run their course.
Spencer, experts said, is likely to turn them down, requiring the McDonnells to report to federal prison some time after their formal sentencing. And that decision, too, is likely be appealed.
Rosalind S. Helderman contributed to this report.