Bacon's Rebellion

Democracy Thrives in Sunlight

McDonnells May Have Shot at Appeal

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Peter Galuszka
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mcd convictedBy Peter Galuszka

Robert F. McDonnell, the only Virginia governor ever to be found guilty of corruption, may actually have a good shot at having his convictions reversed on appeal, according to some legal experts.

I have the story in this week’s Style Weekly.

The issue, which has been tossed around many times, involves how broadly or narrowly “honest services fraud” can be interpreted. The key points are whether or not McDonnell and his co-convict and wife Maureen did deny the public the “intangible right” of honest services by taking something of value in exchange for an action.

A further complication is that if they did, in fact, take an action in exchange for something, was it an “official” action? It tends to worry lawyers from such law schools as Harvard, the University of Virginia and the College of William & Mary.

Among some of their worries are that if McDonnell took money from star prosecution witness Jonnie R. Williams but took no specific action for the vitamin salesman, how is that different from a president granting a donor an ambassadorship.

Another concern that “honest services” statutes can be so “vaguely worded” that they could allow prosecutors to carve out a new crime that the defendants might not know they are committing.

I covered most of the six-week-long trial for Bloomberg News last summer and there is no question in my mind that the McDonnells’ behavior was shameful. U.S. District Judge James Spencer tended to go with a broad interpretation of the law.

We’ll see when arguments for McDonnell’s appeal start May 12 at the U.S. Fourth Circuit Court of Appeals in Richmond. I’ll keep my own legal opinions to myself for the moment.

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  1. DonR Avatar
    DonR

    I thought this was an interesting blog post …

    http://bearingdrift.com/2015/04/28/will-hillary-be-held-to-the-mcdonnell-standard/

    1. larryg Avatar
      larryg

      If Hillary looted the kitchens where she was and encouraged the head chef to loot also – then through him under the bus when he got caught – not thinking ahead… about the consequences of doing that…

      then Hillary deserves the fate of the McDonnells..

      The Hillary thing is the Bengazi/state-dept email/ and now Clinton foundation issues all rolled up into one giant partisan weapon…

      so far a lot of smoke .. we’ll see.

      the GOP is terrified of her – almost pathologically so because the GOP is used to seeing the likes of Pallin, Bachman and Floriana, Cain, Trump, clown car riders.

      The GOP hates it’s moderates these days – they’re spending as much time trying to undermine them as they are Hillary.

      The GOP has unearthed John Birch and is busy breathing new life into that flavor of politics.

      1. James A. Bacon Avatar
        James A. Bacon

        Larry, What kind of case would the Justice Department have had against the McDonnells if McDonnell had maintained his own email server and then deleted all the emails? He could have used the exact same argument you’re using — “it’s all smoke.”

        1. larryg Avatar
          larryg

          Jim – do you think that in Va that folks like McDonnell use a separate email for their “private” communications ..

          AND that they NEVER send/receive govt info to others included elected others?

          do you think if we did a little investigation of elected in Va and their use of private emails for govt business that we’d find any problems?

          are you seriously interested in this issue – in a NON-PARTISAN way?

          answer up .. what do you say?

      2. DonR Avatar
        DonR

        It seems to fit the same pattern. A politician and a spouse – both are getting contributions. Bill’s speaking fees suddenly double when Hillary becomes Secretary of State. She signed an agreement with the Obama Administration on how to handle potential conflicts of interest and then didn’t follow the agreement. She provides access for donors and even votes on a panel to recommend actions favorable to the donor.

        If she went to trial and the judge in her trial gave the jury the same instructions that James Spenser gave to McDonnell’s jury I think she’d be in hot water.

        However, my guess is that the appeals court will look long and hard at those instructions and may reverse the McDonnells’ conviction.

        It was interesting listening to Snuffleufugus misconstrue the honest services law on TV. He kept asking for hard evidence of a quid pro quo. There doesn’t need to be hard evidence of a quid pro quo.

        I personally think the law is overly broad and ought to be amended or struck down. However, until that happens, it ought to be applied the same way to all politicians.

        1. larryg Avatar
          larryg

          no – you’d AT THE LEAST – have to point to a particular person who is the recipient of the favors AND communications between the two

          which is what cooked McDonnells goose.

          and it was the screwed Chef that spilled the beans and gave the Feds the link to Williams..

          If Hillary did do such a thing – then yes you deserves the same or worse treatment.

          but right now – what you have is partisans who say that she did this but they have nothing beyond a conspiracy theory – which is how they tend to business now on everything from bengazi to global warming.

          at some point – people figure out that the right cries wolf …and this
          rolls back on them.

          jesus Don – are you THIS easily influence by innuendo and smear tactics?

          show me some beef, guy.. where is it?

        2. larryg Avatar
          larryg

          here’s the problem. The GOP – has done their typical sound-bite logic and converted “smoking gun” to “smoking”.

          the’re “smoking” alright but it’s the hair in their ears…

          they have the same problem with “veto-proof majority” .. just a simple GOP majority is sufficient…

          talk about dunderheads…

          Don – listen up -I’d not just pick up whatever torch comes flying in from the GOP these days.. especially if it is wrapped in hairballs…

  2. larryg Avatar
    larryg

    my bet is that at some point – it is going to be pointed out that the other option from a private server is maintaining a govt email account and a private emails account – and the issue of how much govt info is going to/from the private account.

    do you think if we started looking at all .gov mail that went to non .gov emails and vice versa that we’d find anything?

    are some of the folks so upset by a private server (which I agree is wrong and dumb ) are not seeing the same potential in someone having two emails -one private and one government and back and forth between them?

    would you find that as “troubling” as the private server issue?

    if you do – I do not see your “concerns” being expressed in the same way … just in a partisan way…

    epic fail.

    1. virginiagal2 Avatar
      virginiagal2

      No, I think you don’t get the rules.

      The rules – and those rules apply to most government jobs at any level, including state and local – are designed to insure that government business is conducted on government computers. The reason is to keep permanent records of government acts and make applicable non-classified and non-confidential information available for FOIA (Freedom of Information Act), so that government acts aren’t hidden.

      Doing business on goverment computers insures that emails are stored and that, if you leave, a complete record of your correspondence is available in case someone else needs to see it.

      You’re actually not supposed to send sensitive information to a non-government account. Depending on what you do, often it is okay to forward benign messages home occasionally (Don’t forget to bring a present for retirement party, check this interesting link for a journal article about work, that sort of thing) but you’re not supposed to mix the two.

      Actual government business is supposed to be conducted on an actual government email account.

      Sarah Palin and several other Republicans have been rightly criticized for bypassing this rule – it is not just applicable to Democrats, although it’s interesting to watch the justifications for people upset at the one and who give the other a pass. Basically it translates to, I don’t criticize my own team.

      This isn’t a team issue, it’s a public responsibility issue, and anyone who violates it deserves significant criticism for it.

      Personal business is supposed to be conducted on a personal account, although if it’s not for personal gain, most agencies are tolerant of an occasional email to the spouse or kid or sending a reminder to yourself as noted above.

      The norm for regular people, which is enforced if noticed, is to have a personal account for personal stuff and use your work account for work stuff, with the understanding and expectation that your government work emails are not private in any sense.

      The rule is there for a reason – so government behavior can be accountable.

      This is actually something that would get a Virginia state worker fired. It will also get you fired at many private businesses, who take this seriously.

      FWIW.

      1. larryg Avatar
        larryg

        Virginiagal2 – are you saying that govt officials with 2 accounts are not , infact, , ever using their personal account to conduct govt business?

        how would you know?

        serious question.

        1. virginiagal2 Avatar
          virginiagal2

          No, I’m saying that it is against the rules, that they are good rules, and that they are rules that progressives worked years to implement.

          Watching the dance around this is mind-blowing.

          How would you know? If you’re executive branch, not legislative, you can reasonably expect that every email you send to or from your government office is scanned. It may or may not be saved, but if someone is looking, they can tell.

          This is also true for businesses – most of those of any size have the same rule, for regulatory reasons and to protect intellectual property.

          1. larryg Avatar
            larryg

            vgal – “rules” – will keep elected officials from using the private email to collaborate with others on legislation, lobbying, etc?

            think of the elected in the Virginia General Assembly – do you think “rules” that have no way to to know if they have been broken are “rules”?

            Hillary is taking a beating over this – and she should – but do you think that the other choice of having two emails – that those folks don’t use non-govt email to conduct business?

            do you think wrong stuff can do done that way?

            how would you know?

            do you think you could do a FOIA for their private email?

            how about their texts ? do you think you can look at them ?

            if you don’t have any way to enforce that rule – what would keep all elected from just abandoning their govt emails and use private?

          2. virginiagal2 Avatar
            virginiagal2

            Larry, these are rules for the executive branch, not legislative.

            To the best of my knowledge and belief, they don’t apply to legislators, so your example doesn’t apply.

            Elected administrative officials, probably applies in at least some cases, but you’d have to check the laws for the specific positions as to which are covered and which are not.

            Waldo Jaquith has a lot of knowledge about FOIA and might be a good person to ask, at least for how it applies in Virginia.

            BTW, Hillary was not an elected official.

          3. larryg Avatar
            larryg

            how do you know someone is using a private email account to conduct govt business?

            simple enough question.

            Megan Ryan is the open govt lady…Waldo does Richmond Sunshine – a legislative website.

          4. virginiagal2 Avatar
            virginiagal2

            Waldo is the director at US Open Data and has written repeatedly about FOIA. Google Waldo Jaquith FOIA to see some examples.

          5. larryg Avatar
            larryg

            Virginia Coalition for Open Government
            EXECUTIVE DIRECTOR: Megan Rhyne, Williamsburg

            it’s sorta same church different pew – deal

            Waldo is an open data – guru – he pioneered getting the Va Ga to give him access to bulk data retrievals for legislative information so his “app” Richmond Sunshine could provide real-time access to legislative data from the GA – during session – but he had to break ground on what he could get access to – beyond getting paper results from paper requests. He did not totally realize when he was doing it that he was pioneering…

            but what made it exceptional and unique was/is his skills at building software tools to move data… essentially a sophisticated database and front end – to bulk data in real time.

            and now he’s Staff Director of the U.S. Open Data Institute and promotes open access to govt data.

            he is an exceptionally gifted software , data genius , while Megan knows everything you every wanted to know about FOIA and open govt in Virginia.

            She tweets regularly on FOIA including things like email “meetings”.. Waldo tweets more esoterically.. 🙂

            here’s an interesting post she wrote on email ‘meetings”.

            http://www.opengovva.org/of-course-and-email-isnt-a-meeting-right

            As she would tell you – having a perceived right to govt data and getting it or two entirely different things! Waldo has run into that with his attempts
            to get bulk data but to also urge Virginia (actually other States and Feds, now) to build front ends to their bulk data (databases) for the stuff that is “releasable” and/or let others build front-ends to real-time – not just static data so when the data is updated internally – the releasable part of it is automatically accessible without formal requests.

            not all agencies are hot on that idea and he tries to spread the gospel and actually consult with them on how to configure software and data to do that.

            I am an admirer/supporter of all 3 of them but Waldo is exceptionally gifted talent that is miles over my ability to understand software-wise – you probably would know far more on that.

          6. larryg Avatar
            larryg

            Virginia Coalition for Open Government
            http://www.opengovva.org/current-officers
            EXECUTIVE DIRECTOR: Megan Rhyne, Williamsburg

            it’s sorta same church different pew – deal

            Waldo is an open data – guru – he pioneered getting the Va Ga to give him access to bulk data retrievals for legislative information so his “app” Richmond Sunshine could provide real-time access to legislative data from the GA – during session – but he had to break ground on what he could get access to – beyond getting paper results from paper requests. He did not totally realize when he was doing by himself, that he was pioneering…both access to data and building a front end more sophisticated and useful that the state was doing with a staff.

            but what made it exceptional and unique was/is his skills and talent at building software tools to move data… essentially a sophisticated database and front end – to bulk data in real time.

            and now he’s Staff Director of the U.S. Open Data Institute and promotes open access to govt data and “big” data.

            he is an exceptionally gifted software and data genius , while Megan knows everything you every wanted to know about FOIA and open govt in Virginia.

            She tweets regularly on FOIA including things like email “meetings”.. Waldo tweets more philosophically and esoterically.. 🙂

            here’s an interesting post Megan wrote on email ‘meetings”.

            http://www.opengovva.org/of-course-and-email-isnt-a-meeting-right

            As she would tell you – having a perceived right to govt data and getting it or two entirely different things! Waldo has run into that with his attempts
            to get bulk data but to also urge Virginia (actually other States and Feds, now) to build front ends to their bulk data (databases) for the stuff that is “releasable” and/or let others build front-ends to real-time – not just static data so when the data is updated internally – the releasable part of it is automatically accessible without formal requests.

            not all agencies are hot on that idea and he tries to spread the gospel and actually consult with them on how to configure software and data to do that.

            I am an admirer/supporter of all 3 of them but Waldo is exceptionally gifted talent that is miles over my ability to understand software-wise – you probably would know far more on that.

            I can’t give links without sending this to moderation purgatory but if you email me I can send them or you can just google the appropriate key words or I can give you the keyword string to get you there.

  3. larryg Avatar
    larryg

    anyone have an answer to how we know if an elected official is using his private email to contact other legislators, lobbyists, etc?

    anyone know ?

  4. larryg Avatar
    larryg

    Virginia Coalition for Open Government
    http://www.opengovva.org/current-officers
    EXECUTIVE DIRECTOR: Megan Rhyne, Williamsburg

    it’s sorta same church different pew – deal

    Waldo is an open data – guru – he pioneered getting the Va Ga to give him access to bulk data retrievals for legislative information so his “app” Richmond Sunshine could provide real-time access to legislative data from the GA – during session – but he had to break ground on what he could get access to – beyond getting paper results from paper requests. He did not totally realize when he was doing it that he was pioneering…

    but what made it exceptional and unique was/is his skills at building software tools to move data… essentially a sophisticated database and front end – to bulk data in real time.

    and now he’s Staff Director of the U.S. Open Data Institute and promotes open access to govt data.

    he is an exceptionally gifted software , data genius , while Megan knows everything you every wanted to know about FOIA and open govt in Virginia.

    She tweets regularly on FOIA including things like email “meetings”.. Waldo tweets more esoterically.. 🙂

    here’s an interesting post she wrote on email ‘meetings”.

    http://www.opengovva.org/of-course-and-email-isnt-a-meeting-right

    As she would tell you – having a perceived right to govt data and getting it or two entirely different things! Waldo has run into that with his attempts
    to get bulk data but to also urge Virginia (actually other States and Feds, now) to build front ends to their bulk data (databases) for the stuff that is “releasable” and/or let others build front-ends to real-time – not just static data so when the data is updated internally – the releasable part of it is automatically accessible without formal requests.

    not all agencies are hot on that idea and he tries to spread the gospel and actually consult with them on how to configure software and data to do that.

    I am an admirer/supporter of all 3 of them but Waldo is exceptionally gifted talent that is miles over my ability to understand software-wise – you probably would know far more on that.

  5. larryg Avatar
    larryg

    here’s a interesting article on the practice of public officials using private email accounts in Virginia:

    “Local government officials make use of private email systems”

    “As former Secretary of State Hillary Rodham Clinton’s use of a personal email account has recently come under scrutiny, Charlottesville Tomorrow has evaluated the email practices of Charlottesville’s City Council and the Albemarle County Board of Supervisors.

    Two of the 11 elected officials on these bodies advertise personal email addresses on their government website, and neither locality has made it a practice to routinely archive communications from personal email accounts.”

    the article goes on to say that the govt officials are “scrupulous” about the separation of govt from private emails – but – and this is the but I am asking about – it’s totally up to them to decide what is govt and what is not when they decide and as the article points out – on the govt website – two of the elected provide personal email accounts – not their govt-assigned accounts.

    so – the bigger point – is maintaining a private server where you decide what is private and what is govt – much different than having two separate accounts and deciding which has only govt info on it and the other only has private info on it – AND – what to delete and when.

    When a FOIA is launched for info on a private email account held by a govt person – are they getting only the data that is left after they delete or are they getting the entire archive including any deleted ?

    keep in mind that all of us , included elected and appointed officials are free to have more than one private email account also.

    how do we know what private email accounts public officials even have beyond what they tell us?

    You’d almost have to search their home computers and phones to see what email accounts they are using.

    the question is – how much of your privacy do you relinquish when you become a member of government?

    Hillary screwed up Big Time – no question about it – but just about any public official is, right now, free to do – essentially what she did – with their own private email accounts …

    It well could be -that technology has, once again, overwhelmed how govt rules are supposed to work…

    😉

    In McDonnells case – which is true of virtually any court case – public official or not – “discovery” allows the gathering of any/all communications of the parties – if the police know the paths the communications took – and that’s why you see them hauling off every electronic device they can find when they do the court-authorized searches.

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