Outside the Beltway

Federal Prosecutors Will Not Retry Former Virginia Governor Bob McDonnell

After a unanimous Supreme Court victory, Bob McDonnell won't be facing another corruption trial.

Doug Mataconis · Thursday, September 8, 2016 · 2 comments

In the wake of June’s unanimous Supreme Court decision overturning his conviction on public corruption charges, former Virginia Governor Bob McDonnell’s future was uncertain. The decision did not result in the charges being fully dismissed, but instead nullified the conviction and returned the matter to the trial court where, if the prosecution chose, the case could be retried albeit on the basis of the narrow reading of Federal law that the Supreme Court’s decision said was required under the law. Today, the Justice Department announced that it would not be pursuing charges against McDonnell or his wife Maureen:

Prosecutors will not attempt to retry former Virginia governor Robert F. McDonnell and his wife Maureen on corruption charges, ending a four-year saga that rocked the Commonwealth’s political class and cut short the rise of a Republican star, according to a court filing.

The filing Thursday asks that the case be sent to a lower court, where prosecutors will formally file a motion to dismiss.

The decision is a major victory for the former governor, who has always maintained that he did nothing illegal in his relationship with a nutritional supplement salesman. It’s a blow to both the U.S. Attorney’s Office — which had recommended pressing forward with the case to Justice Department higher-ups — and advocates for strict enforcement of anti-corruption legislation.

A spokesman for the U.S. Attorney’s Office in the Eastern District of Virginia did not immediately return a request for comment, and attorneys for McDonnell could not immediately be reached.

William A. Burck of Quinn Emanuel Urquhart & Sullivan LLP, attorney for Maureen McDonnell, said: “We thank the Department of Justice for the care with which they reviewed the case. We are thrilled and thankful that Maureen can now move on with her life.” Legal analysts have said Maureen McDonnell’s fate was tied to her husband’s.

The decision to walk away from the case comes less than a week after it was publicly reported that the U.S. Attorney’s Office in the Eastern District of Virginia — which brought the case against McDonnell — had recommended pressing forward to Justice Department higher-ups. It means that they were either overruled, or convinced to change their minds.

Some legal analysts said dropping the case is appropriate.

“The decision not to prosecute vindicates those who believed all along that this case was an inappropriate extension of the bribery and gratuity statute,” said Jacob Frenkel of the firm Dickinson Wright. “Sometimes it takes the Supreme Court to rein in prosecutorial overreaching, and that is exactly what has occurred here.”

While McDonnell no longer must fear prison, he may find the cloud over his reputation hard to remove. The Supreme Court called his actions “tawdry.” In a recent Washington Post poll, two-thirds of Virginia adults surveyed said he should not run for elected office again. Even 60 percent of Republicans would like to see him remain in private life. A plurality of Virginians also thought the Supreme Court was wrong to overturn the verdict.

Given the extent to which the Supreme Court’s decision narrowed the interpretation of the statute under which Federal prosecutors chose to prosecute McDonnell and his wife, this isn’t all that surprising. Had the case proceeded to trial, prosecutors would have been required to prove beyond a reasonable doubt that the public official in question agreed to do some “official act” for the benefit of the person passing on a donation, gift, or other benefit and this “official act” must amount to more than just facilitating meetings between the donor and state officials involved in regulating an area of business the donor may be involved in. Instead, there must be evidence that the public official involved sought to influence the outcome of an official proceeding, or otherwise get some benefit from the government on behalf of the donor. While McDonnell’s behavior with respect to the donor in question in his case was hardly exemplary, the Court ruled, there was no evidence on the record, and apparently no real evidence at all, that any of this was true in this particular case. Taking all of that into account, it’s likely that the prosecution would not have been able to meet its burden in a retrial and, if that’s the case, then there’s no real justification for trying the case all over again.

None of this means that life is going to be all roses for former Governor McDonnell going forward. His political career is over and his reputation in Virginia has been essentially destroyed, as has his marriage of some three decades. His license to practice law was suspended upon his conviction and it may still take him time to get it back even with the Supreme Court having ruled in his favor earlier this year. This is fairly steep fall for a guy who was once on the short list to be Mitt Romney’s running mate, if not a candidate for President in his own right. To be honest, though, he deserves it. Even if what he did is apparently not illegal under either Virginia or Federal law, it still reveals him to be a rather venal, cynical, sleazy actor and it’s caused many people who voted for him in 2009. It also revealed holes in the ethics laws here in Virginia that the General Assembly has yet to do anything about, and unfortunately the fact that McDonnell’s conviction was overturned probably means they won’t be acting to fix those laws any time soon, especially since the current state of affairs benefits legislators from both sides of the political aisle. So, Virginia residents remains screwed when it comes to ensuring more ethical representation going forward, which was really the what the whole McDonnell affair was about.