by James A. Bacon
The McDonnell GiftGate scandal has has the salubrious effect of inspiring legislators to tighten up state ethics laws. There is no way to know what the final outcome will be, but the legislative end product undoubtedly will create more transparency and accountability than existed before.
There is, however, a potential downside to the indictment against former Governor Bob McDonnell and his wife Maureen. If federal prosecutors win convictions, one could argue, they will succeed in criminalizing routine political conduct. The new, loftier standards used to convict McDonnell will apply to his successors as well.
The former governor and first lady argue that they provided no tangible benefit to former Star Scientific CEO Jonnie Williams Sr. in exchange for tens of thousands of dollars in personal gifts and loans. There is a big difference between (a) informal actions such as posing in photo-ops, hosting receptions in the governor’s mansion, or even setting up meetings with government officials and (b) formal actions that would affect legislation, regulations, enforcement of the law, appointments to boards and commissions or the dispensation of state funds. The McDonnells engaged in (a) but not (b). Even the prosecutors do not assert otherwise.
The conduct of the McDonnells, maintain their defense attorneys, was “indistinguishable” from that of predecessors, including former Governor Tim Kaine, who received the use of a Caribbean vacation home, a gift valued at $18,000, from an investor whom he subsequently reappointed to the Virginia Commission on Higher Education Board Appointments.
“Because these are practices that the commonwealth has affirmatively chosen to permit, there is no way that Governor McDonnell could have imagined that the federal government would suddenly declare his acceptance of lawful gifts to be a crime,” states the defense motion. “There is thus likewise no way that Governor McDonnell could have possessed the corrupt intent required to commit bribery.”
Read the indictment. Prosecutors thoroughly document the gifts that Williams lavished upon the McDonnells and their children — shopping sprees, vacations, personal loans, golf outings and a wedding reception. They also present evidence that the McDonnells, Mrs. McDonnell in particular, solicited many of these favors. Such outrageous behavior affronts the sensibilities of Virginians, who rightly regard it as scandalous. But did it amount, in the words of the indictment, to “a scheme to use Robert McDonnell’s official position as the Governor of Virginia to enrich the defendants and their family members?” If so, what benefit did the McDonnells confer upon Williams in return?
The governor set up meetings between Williams and state officials who might be in a position to help the Star Scientific executive gain state funding or buy his product, Anatabloc. The governor’s office even followed up to see if there was any interest in pursuing the matters discussed. There is no evidence, however, that McDonnell twisted anyone’s arm, much less that Star Scientific ever received anything of value. Indeed, in at least one email, Ms. McDonnell complained that state university officials would not return Williams’ phone calls. No special legislation. No special regulations. No relaxation of law enforcement. No permit approvals. No subsidies, tax breaks or grants.
Maureen McDonnell did endorse the company and its products, lending whatever credibility she could offer as first lady of Virginia. The McDonnells lent the Governor’s Mansion for a Star Scientific reception. And the governor’s office did arrange for Star Scientific executives to get tickets to a state-organized confab of “health care leaders” where they could schmooze and pitch their product. That’s pretty weak tea.
While Ms. McDonnell’s behavior was reprehensible — buying shares of Star Scientific stock while shilling for the company, then going to great lengths to avoid reporting the stock purchase in public disclosure documents — was it illegal? Maybe. I don’t know the law. I’m happy to let the judge decide.
Of greater portent, were Governor McDonnell’s actions illegal? Is it truly unprecedented for governors to set up meetings between campaign contributors (and/or donors of personal gifts) and officials within their administrations? I find that hard to believe. Why else do people give large sums to political campaigns if not to gain access to the apparatus of government? Are we really prepared to criminalize such activity?
If the prosecutors win their case against the McDonnells, the current raft of ethics laws under consideration by the General Assembly will fall short of the new standard. The real challenge will be to devise rules consistent with the new, elevated sense of propriety. And that, I predict, will far more easily said than done.
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