Defining Corruption Downward

Former Virginia Governor Bob McDonnell asks the U.S. Supreme Court to rule that the gifts he took, and the favors he performed, were just politics as usual.

On April 22, Terry McAuliffe, the current governor of Virginia, issued an order restoring full civil rights—including the right to vote—to more than 200,000 Virginians who had been convicted of felonies.

Until now, a felony conviction in the commonwealth had carried with it lifelong disfranchisement—unless a governor issued an individual order restoring rights. This was a boon not easily granted; indeed, one previous governor had required felons seeking restoration to submit “personal essays” explaining why they deserved it.

That predecessor, Bob McDonnell, will go before the U.S. Supreme Court Wednesday. Once a potential Republican vice-presidential candidate, Bob McDonnell is now a felon himself.

His is the story of an ambitious family living beyond its means; of a political marriage shattered by the demands of public life; of financial desperation that, in the presence of temptation, transformed itself into all-but-shameless greed.

But legally, McDonnell’s appeal transcends its nighttime-soap-opera plotline. The disgraced ex-governor is asking the Court to expand the First Amendment—already stretched beyond recognition by its application to the open use of money in politics—into a safeguard for any elected officeholder canny enough to disguise ever-so-slightly the exchange of money for favors.

The fall of the McDonnell family (the governor’s wife, Maureen, stood trial with him; her appeal is pending before the Fourth Circuit) had its roots in the financial collapse of 2008. McDonnell, an Army veteran and former Virginia attorney general, was bit wealthy when he was elected governor in 2009. After the crash, his family real-estate holdings had become a monthly cash drain. Bankruptcy seems to have been a real possibility.

But into his life, and Maureen’s, came an angel named Jonnie Williams, owner of a nutritional-supplement firm called Star Scientific. At their first social encounter, Williams dazzled the McDonnells, ordering a $5,000 bottle of cognac and offering to speak to his friend Oscar de la Renta about a custom inaugural gown for Maureen.

They were saved. Eventually the McDonnells arranged $100,000 in personal and family-business loans, and another $15,000 loan to pay the bills for their daughter’s wedding. But Williams’s help became more indulgence than financial rescue. The ATM was working; the McDonnells enthusiastically punched in the PIN: a $20,000 Manhattan shopping spree for Maureen; an all-expense-paid family vacation in the Virginia mountains (complete with a borrowed Ferrari for the governor to drive back to the Mansion); expensive golf and pro-shop sprees at a toney Richmond club; a $6000-plus engraved Rolex for Bob. The gifts were not illegal under Virginia law, but many also were not disclosed, as the law required.

Of course, Williams had his own needs. Star Scientific had developed a substance called Anatabloc, made from tobacco, that it believed would reduce inflammation in humans—and, thus, might be a promising treatment for Alzheimer’s disease. Getting federal approval for a new drug requires expensive clinical tests, which the company could not fund.

Williams wanted three things: First, clinical trials at the medical schools of two prestigious Virginia state universities, the University of Virginia and Virginia Commonwealth University; second, funds for the trials from the state’s Tobacco Board; and, third, coverage of Anatabloc (as a nutritional supplement until FDA approval) by the state’s employee health-insurance plan.

The McDonnells did their best to oblige. They instructed state officials to meet with Williams to discuss the possibility of testing and coverage; they contacted governor’s staff members to push them to encourage the testing proposal; they invited university officials to events at the Governor’s Mansion to hear a pitch from Williams; and, finally, they sponsored an official “product launch” for Anatabloc at the Virginia Governor’s Mansion—an event arranged by state employees at which each attendee received a sample of the compound.

Nothing came of the testing plan, and eventually the whole business came to light; in 2014, Bob McDonnell was convicted by a federal jury of defrauding the people of Virginia of his “honest services,” and of using “official right” to extort property. He was sentenced to two years in prison. Maureen’s sentence was a year and a day.

But as his appeal was pending, the Supreme Court stepped in to stay the sentence. That allowed him to remain free pending the Court’s decision—and gave a hint that five justices viewed his case favorably.

McDonnell’s lawyers offer two arguments. First, they say, the federal corruption statutes are loosely worded and thus allow prosecutors to go after almost any politician they dislike. That’s a standard criminal-law argument, and one that other commentators have made before.

The second argument, however, is relatively new. McDonnell argues that Citizens United has eaten the corruption statutes. Since the Supreme Court has legitimized the use of money to gain “ingratiation and access” to the powerful (the words are from Citizens United itself), the federal government can’t prosecute politicians who take the bait.

McDonnell’s brief suggests that “the First Amendment protects the right to contribute to political campaigns—including the increased access to government officials such contributions may yield—yet the corruption statutes risk exposing officials and contributors to criminal investigation, prosecution, and imprisonment.”

Because of this risk, “citizens cannot fully exercise their First Amendment rights to support candidates and petition officials—and officials will be reticent to meet with constituents who have exercised that constitutional right—if all are under perpetual threat of indictment.” McDonnell doesn’t ask the Court to strike down the corruption statutes—simply to construe them so strictly that they would reach only  “acts that exercise (or pressure others to exercise) the actual power of the state, i.e., acts that direct or urge a specific decision or commitment on behalf of the sovereign.” Urging people with power to meet with rich friends thus would be no crime.

The missing step in McDonnell’s argument is that, of course, McDonnell was not convicted of doing favors for a campaign donor; he was convicted of doing favors for a man who gave him and his wife personal gifts because of his official position, most of them undisclosed. Well, yes, but McDonnell argues that campaign donors do pretty much the same thing, and sending Bob McDonnell to jail for secret gifts might be chilling to others who write huge, entirely legal checks.

The terrifying thing about this argument is that, in the degraded state the First Amendment has reached, it makes some sense. (Thus, a stellar lineup of criminal-law scholars, including former federal District Judge Nancy Gertner, has filed an amicus brief supporting McDonnell on the issue.) McCutcheon v. Federal Election Commission, the latest salvo in the Court’s ongoing war on campaign-finance reform, put the Court majority on record as saying, in essence, that donors give money because they want influence, and that such influence-buying is not corrupt. (Only explicit deals—“Vote for my bill and I will give you money”—meet the Court’s new definition.)

Giving money to politicians, the Court now says, is not a problem: It is the solution, “a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”

The new First Amendment definition of corruption, McDonnell argues, must now leach into the corruption statutes. If someone gives a striving governor $100,000, and a vacation, and a ride in a cool car, and a nice watch, and nice clothes for his wife, of course that governor will feel “general gratitude,” as well he might. And if that “general gratitude” leads him to make calls to government officials who may be able to help the benefactor make billions, or to lend out the Governor’s Mansion, well, that’s not corruption but just good manners. Unless the governor says something like, “I, Robert McDonnell, Governor of Virginia, hereby sign a binding executive order that state policy now favor my pal Jonnie Williams because he gave me money,” then, no harm, no foul.

Greed for money, lust for power, and the craving for impunity are powerful forces; loosed in the political system by judicial decree, they are swiftly devastating any remaining shreds of dignity and honor. United States v. McDonnell may another step toward an autocracy of wealth, ruled by the rich and by the shameless politicians, like Bob McDonnell, who serve them.