Rod Blagojevich, Bob McDonnell, and the Nature of Corruption

What’s the line between “politics as usual” and political corruption? Recent cases involving two former state governors provide some interesting insights.

Former Virginia governor Bob McDonnell is currently preparing to ask the U.S. Supreme Court to review and possibly overturn his corruption convictions. Meanwhile another former governor, Rod Blagojevich of Illinois, recently succeeded in having some of his corruption convictions thrown out by the U.S. Court of Appeals for the Seventh Circuit.

Blagojevich was indicted in 2009 on multiple counts including racketeering, conspiracy, honest services fraud, and extortion. As a result of the federal investigation, he was impeached by the Illinois legislature and removed from office. He ultimately was convicted of eighteen felony charges and in March of 2012 began serving a 14-year prison sentence.

Blagojevich’s trial centered on a number of different “pay to play” schemes in which the governor sought to extract “campaign contributions” or other things of value from those seeking action from his office. (The Seventh Circuit put the term “campaign contributions” in quotes because Blagojevich was in his second term and had already decided not to run for re-election; thus the jury was free to accept the government’s theory that the money was really for his personal use.) Much of the evidence came from Blagojevich’s own mouth: the FBI had been wiretapping his phones for months.

In one instance, when hospital lobbyists sought an increase in the reimbursement rates the state paid for Medicaid patients, Blagojevich let the hospital know he would agree to the new rates in exchange for a $50,000 “campaign contribution.” In another incident, after the state legislature approved a program to tax casinos for the benefit of racetracks, Blagojevich sent word to a man with interests in two racetracks that the governor would not sign the bill until the man made a $100,000 “contribution.”

Perhaps the most notorious of Blagojevich’s misdeeds, however, was his attempt to cash in on his power to appoint President Obama’s successor in the U.S. Senate. When then-Illinois Senator Obama was elected President, it left a Senate vacancy that Illinois law gave Blagojevich the power to fill. He clearly relished the potential value of this power; on one memorable bit of tape, the FBI caught him describing his ability to fill the Senate seat by saying “I’ve got this thing, and it’s f**king golden . . . I’m just not giving it up for f**king nothing.”

The evidence at trial established that Blagojevich first sought a favor from President-elect Obama in exchange for appointing Valerie Jarrett, whom Blagojevich believed was Obama’s favored candidate for his former seat. Working through intermediaries, Blagojevich asked to be appointed as an ambassador or to a seat in the President’s cabinet, or for the President-elect to arrange a job for Blagojevich at a private sector foundation or other organization that would receive funds he could control from the federal government or from the President’s supporters.

Obama was not willing to make a deal and, as his quote above made clear, Blagojevich was not about to make the appointment without some kind of compensation. He moved on and offered to appoint U.S. Rep. Jesse Jackson Jr. to the seat in exchange for a $1.5 million “campaign contribution.” Fortunately, he was arrested before this attempt went very far.

The government charged these attempts to get something in exchange for the Senate appointment under various legal theories including attempted extortion and wire fraud. The jury found Blagojevich guilty of those and other charges. On appeal, the Seventh Circuit affirmed the majority of Blagojevich’s convictions, finding the evidence “overwhelming,” but overturned those related to the attempts to sell the Senate seat.

The Court of Appeals noted that the trial court’s instructions would have allowed the jury to convict Blagojevich for agreeing to make the appointment in exchange for a private sector job or funds that he could control, and that would be perfectly valid. Either would establish classic quid-pro-quo bribery, where the public official receives something of value to which he is not entitled in exchange for exercising his official powers.

But the instructions also would have allowed the jury to convict Blagojevich based solely on his offer to trade the Senate appointment for a position for himself in the Obama administration. And that’s where the convictions ran into trouble.

The Court of Appeals concluded that offering to trade one appointment for another was not an act that could support a corruption conviction: “a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.”

The Court noted that the trading of political favors, or what it called “logrolling,” is a common occurrence. Congressman A might agree to vote for a bill favored by Congresswoman B, and in exchange B agrees to support a program favored by A.   The President appoints C as an ambassador as a favor to Senator D, who agrees in return to vote to confirm another of the President’s appointments.

This type of horse trading is considered politics as usual; part of the give and take and compromise of politics without which little could ever be accomplished. It may appear unseemly at times, but it is not generally considered corrupt.

It’s true that the public job would have benefited Blagojevich, but that’s also true of many other political acts that could be exchanged for making the appointment. For example, if the federal government had agreed to support a major infrastructure project in Illinois, that could inure to Blagojevich’s benefit by bolstering his political standing and reputation. The key is not whether a politician benefits in some way from a deal, but whether the deal involves corrupt intent – and the trading of one political favor or public act for another generally does not.

If the jury had found that Blagojevich agreed to make the appointment in exchange for money or a private sector job, there would be no problem with the verdict. But because the instructions also allowed the jury to convict him even if he was simply engaged in political horse-trading, those convictions could not stand.

(As an aside, Blagojevich appears to have won the battle but lost the war – although he did get five of eighteen counts of conviction tossed out, the sentences on all charges ran concurrently so his overall prison sentence is unlikely to be affected.)

Now let’s turn to former Virginia governor Bob McDonnell. McDonnell, like Blagojevich, rests part of his appeal on the claim that he was improperly convicted for actions that were not corrupt but were simply politics as usual.

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McDonnell and his wife Maureen were found guilty in September 2014 on multiple counts of corruption. Their convictions were based on their relationship with businessman Jonnie Williams. The government charged that Williams gave the McDonnells valuable gifts including a Rolex watch, thousands of dollars in designer clothing, payment of the catering bill for their daughter’s wedding, and $120,000 in no-paperwork, interest-free “loans.” In exchange, the government charged, the McDonnells agreed to use the powers of the Governor’s office to promote Anatabloc, a dietary supplement made by Williams’ company.

Throughout the case, McDonnell has never denied that he and the first lady received the gifts from Williams. Instead, his defense has been a variation of the “politics as usual” argument. He claims that Virginia ethics laws were very lax and that accepting such gifts was simply the “Virginia way.” He also has argued that anything he did for Williams in exchange, such as arranging meetings with or introductions to other state employees, amounted to routine political courtesies for a supporter and could not form the basis of a corruption conviction.

McDonnell has an impressive amount of support from other lawmakers, both in Virginia and nationwide. Many politicians, including several former Virginia Attorneys General, filed briefs arguing that McDonnell’s convictions pose a dire threat to our political system and to politicians everywhere. These supporters claim that if McDonnell’s convictions are allowed to stand, no politician can attend a routine fundraiser or Rotary Club breakfast and later take action supported by those in attendance without fearing that the FBI will come knocking.

I’ve found it surprising – and a little disheartening – to see so many politicians and former Attorneys General essentially arguing that the Republic will fall if politicians aren’t allowed to behave the way McDonnell did. (By the way, it’s worth noting that it has been more than a year since McDonnell was convicted and there is no sign that government in Virginia or elsewhere has ground to a halt.) Despite the political weeping and gnashing of teeth, at bottom the McDonnell case really is a relatively straightforward case of quid-pro-quo corruption.

The intersection of money and politics is always a potentially treacherous one. Politicians do have a legitimate need to raise money for their campaigns. They hold fundraisers and accept support from interested individuals who would like to see them act in a certain way, and they regularly take actions that are favored by those who support them. That is indeed politics as usual, and politicians behaving that way have nothing to fear from the McDonnell case.

The sleight-of-hand in McDonnell’s argument is his attempted lumping of Williams in with ordinary donors and supporters. Attending a fundraiser, hearing from constituents, and later taking steps favored by those constituents and donors is indeed what politicians do. Having someone secretly pay for your daughter’s wedding caterer, give you a Rolex and expensive vacations, or give you secret, no-paperwork “loans” – and agreeing to do political favors in exchange — most decidedly is not.

Legal campaign contributions are within established limits and are reported so the public may see where a politician’s support is coming from. Such contributions generally are not considered corrupt, even when the politician acts in a way favored by those donors. As long as we have privately financed campaigns, these types of relationships between politicians and their supporters are inevitable. Sunlight – in the form of disclosure of the contributions – is supposed to act as the disinfectant to prevent secret and undue influence.

(Of course, the post-Citizens United presence of super-PACs and other organizations that can spend unlimited amounts on behalf of a candidate raises a whole host of other issues, but that’s beyond my scope here.)

It’s possible for campaign contributions alone to form the basis of a bribery charge, but it’s very rare. There must be an explicit deal in which the politician agrees to take a specific action in direct exchange for the contribution. Absent such an agreement, lawful campaign contributions have almost a presumption of legitimacy – despite the reality that we all believe politicians ultimately may be influenced to some degree by those contributions.

But Jonnie Williams was not just another donor or supporter. He was not holding fundraisers for McDonnell or “bundling” publicly reported campaign contributions. He provided the McDonnells with $170,000 in secret, off-the-books gifts. Likening these secret payoffs to routine political support is disingenuous at best.

What’s more, the jury instructions in the McDonnell case required the jury to find quid pro quo corruption. Merely accepting the gifts was not enough; the jury was told they had to find an agreement by McDonnell that his official actions would be influenced in exchange for the gifts.

Despite his protestations, McDonnell was not convicted for extending routine political courtesies to a “supporter.” He was found guilty of agreeing to sell the power and influence of his office in exchange for undisclosed gifts that effectively doubled his annual salary as governor. That is not politics as usual.

Politicians are free to trade political favors but they can’t agree to sell the exercise of their powers to the highest bidder. They are free to take steps to benefit their supporters, but not to enter into secret deals to act in direct exchange for valuable gifts. The line between politics as usual and political corruption may not always be crystal clear, but there’s little doubt that the actions of these former governors fell on the wrong side of that line.

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Bob and Maureen McDonnell: Running Out of Legal Options

Update 8/31/15:  The Supreme Court today granted McDonnell’s request to remain free on bond while the Court considers his petition for certiorari.  I think this is surprising, and has to be considered a very good sign for McDonell.  It suggests there is some level of interest at the high court in reviewing the case, even though not a single judge so far in the lower courts has agreed with McDonnell’s arguments.  Stay tuned.

The former Governor and First Lady of Virginia are rapidly running out of both time and options to avoid going to prison.

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Bob McDonnell and his wife Maureen were convicted last September on multiple counts of corruption.  The jury found that they conspired together over a two-year period to use the powers of the Governor’s office to help a businessman, Jonnie Williams, who was trying to promote his dietary supplement Anatabloc within the state government.  In exchange, Williams gave the McDonnells $120,000 in interest-free, no-paperwork “loans,” along with gifts including a Rolex watch, designer dresses, golf outings and luxury vacations, and payment of the catering bill for their daughter’s wedding.  Following their convictions, Bob McDonnell was sentenced to two years in prison and Maureen was sentenced to one year and one day.

Although the McDonnells were tried together, their appeals have proceeded on separate tracks.  Maureen’s appeal to the U.S. Court of Appeals for the Fourth Circuit has not even been argued yet, and is currently scheduled for a hearing on October 29.  Bob’s appeal was argued last May, and a three-judge panel of the Fourth Circuit unanimously affirmed his conviction on July 10.

The former Governor asked the Fourth Circuit for a rehearing by the same judges or for an en banc rehearing by the entire court.  The court denied both requests on August 11, with not a single judge voting to re-hear McDonnell’s case.

McDonnell has been free on bond during his appeal, but the Fourth Circuit has now rejected his request to remain in that status while he petitions the U.S. Supreme Court to hear his case.  The Fourth Circuit ruled that the mandate  — the order from the trial judge enforcing the verdict and sentence – will issue this Thursday, August 27.  Once the mandate issues, the U.S. Bureau of Prisons will designate a facility where McDonnell will serve his sentence and he will be given a date to report to prison.  This could happen in a matter of only a few weeks.

McDonnell’s lawyers have filed a last-ditch appeal with the U.S. Supreme Court, asking that he remain free while he files a petition for certiorari asking the Court to review the Fourth Circuit’s decision.  To succeed, they have to persuade the Supreme Court that there is a reasonable likelihood not only that four Justices will vote to take the case but also that McDonnell will ultimately prevail.  That’s a real uphill battle.

McDonnell’s principal argument on appeal is that his conviction represents a dangerous and unprecedented expansion of federal corruption law because he did not perform any “official acts” in exchange for the gifts that he unquestionably received from Williams.  But McDonnell’s lawyers have been making that same argument since before he was indicted, and so far not a single judge (not to mention a single juror) has agreed.

When all prior judges to consider an argument have unanimously rejected it, it’s pretty hard to see five Justices of the Supreme Court buying in.  When you couple that with the fact that the Supreme Court agrees to review fewer than 1% of the petitions it receives, it looks pretty unlikely that the Court will disturb the Fourth Circuit’s decision that McDonnell should begin serving his sentence.

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Bob McDonnell’s Arguments on Appeal

Bob McDonnell made a number of arguments in his appeal to the Fourth Circuit, including that the judge did not adequately question potential jurors, that he and Maureen should have been tried separately, and that the judge made a number of errors when ruling on evidence during the trial.  (You can find my detailed discussion of these appellate issues here.)  As I expected, none of these gained much traction in the Court of Appeals.  The only substantial issue – which the Fourth Circuit referred to as “the core of this appeal” — was McDonnell’s claim that he could not be convicted of corruption because he never performed any “official acts” within the meaning of federal corruption laws.

McDonnell had an extraordinary amount of support, including briefs filed by politicians from across the county and a number of former Virginia Attorneys General arguing that his conviction was unwarranted and could spell the end of politics as we know it.  But the Court of Appeals had no trouble finding that McDonnell had acted corruptly and that these claims were overblown.

The Court of Appeals noted that both sides in the case, as well as the district court judge, had proceeded on the theory that the relevant definition of “official acts” is the one found in the federal bribery statute, 18 U.S.C. § 201 – a statute that was not part of McDonnell’s case. As I’ve argued elsewhere, this is a dubious proposition — but since all sides agreed the Fourth Circuit chose to accept it, at least for the purposes of McDonnell’s appeal.

Even using this defense-friendly definition, the court had no trouble finding that McDonnell had agreed to engage in a number of official acts in exchange for the gifts from Williams. These included acting on questions concerning whether Virginia universities would fund research studies of Anatabloc, whether a state-created tobacco commission would allocate grant money to study it, and whether Anatabloc would become a covered drug under the health plan for Virginia employees.

These were all matters over which McDonnell, as the state’s chief executive, had substantial influence. The court concluded that the evidence at trial demonstrated he had taken steps to try to influence those matters for Williams’ benefit. As the court noted, it was not necessary for the government to prove that McDonnell actually succeeded, or that Williams actually received a state grant or a research study. Corruption is established by the deal, where the public official agrees to exercise influence in exchange for things of value. It doesn’t matter if the official ultimately succeeds or even if he actually has the power to do what he promised, so long as he makes a corrupt bargain to sell the power and influence of his office.

The court concluded that the evidence showed McDonnell did not merely agree but actually took some concrete steps to try to fulfill his end of the deal. Those steps included directing staff to meet with Williams and to look into conducting the Anatabloc research studies, and holding a “product launch” event for Anatabloc at the Governor’s mansion.

In the end, the Court of Appeals unanimously concluded that, despite the protestations of McDonnell and his allies, this case was really not all that remarkable. In exchange for a string of gifts, McDonnell used the power and prestige of his office to try to further Williams’ business interests. The only thing unusual about the case was that, in the end, Williams did not in fact get much in exchange for his efforts – but as the government has pointed out, that McDonnell was not successful in fulfilling his end of the bargain does not change the fact that the bargain itself was corrupt. As a legal matter, McDonnell does not benefit simply because his efforts to help Williams were ultimately unsuccessful.

Maureen McDonnell’s Arguments on Appeal

Maureen McDonnell’s lawyers are in an unenviable position. The Court of Appeals has already rejected all of Bob’s arguments, and her arguments are virtually the same.  Her lawyers have acknowledged, as they must, that there is “substantial overlap” between the issues in her appeal and the issues already decided in the government’s favor in her husband’s case.

So in preparing for the October 29 argument, Maureen’s lawyers are left trying to find some way to convince the Court that her case and her legal issues are actually different. This is basically like trying to find a good-looking deck chair on the Titanic.

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Maureen’s primary argument is that she is not a public official, and so she should be held to a more lenient standard. Her lawyers claim that as a “high-school educated spouse of a politician,” she could not possibly have known it was improper for her and the Governor to try to help Williams in exchange for all of his largesse.

I think this argument is extremely unlikely to fly. Maureen was charged with conspiring with her husband to sell his influence as a public official, so there was no requirement that she be a public official herself. It is common for those who are not public officials to be charged with corruption, either through a conspiracy charge as in this case or because they are the ones paying the bribes.

As for her state of mind, prosecutors did not need to show that Maureen was some kind of legal expert thoroughly familiar with the ins and outs of federal bribery law and the nuances of the “official act” definition. They only needed to show that she agreed to act corruptly, meaning that she agreed with Bob to exercise the powers of his office in exchange for Williams’ gifts. There was ample evidence of this during the trial.

The other problem with this defense is that there was evidence at trial demonstrating that Maureen knew the relationship with Williams was improper. The most significant was testimony concerning how she sold her stock in Williams’ company just before she had to file a government financial disclosure report, only to buy it right back after the report was filed. She also attempted to transfer ownership of that stock to her children, so it would not be reported and would remain concealed from the public.

There also was evidence that Maureen was told by the Governor’s staff that she could not allow Williams to buy her inaugural gown, as he had offered to do. (He later made up for it, though, by taking her on a shopping spree in New York and buying her several designer dresses.) In short, the suggestion that Maureen was blissfully unaware that there might be anything at all improper about the relationship with Williams simply does not withstand scrutiny.

Finally, questions about a defendant’s state of mind and intent are classic jury questions. These factual issues were fully argued at trial and the jury unanimously found against her. There is no real legal basis here for an appellate court to disturb that finding.

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I think it’s extremely unlikely that Maureen will succeed on appeal where Bob did not, and also unlikely that the Supreme Court will allow Bob to remain on bond or agree to review the Fourth Circuit’s decision. That means Virginia’s former Governor will probably be behind bars before the end of the year, with his wife following shortly thereafter.

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