- The Washington Times - Sunday, July 27, 2014

The defense of former Virginia Gov. Bob McDonnell has always hinged on several key arguments. For example, the more than $165,000 in loans and gifts from businessman Jonnie R. Williams Sr. might have been unseemly — even worthy of an apology to the state — but it wasn’t illegal.

The corruption case against Mr. McDonnell, set to be laid bare in a weekslong trial starting Monday, has also been colored by accusations of prosecutorial overreach and an expansive interpretation of anticorruption statutes from government attorneys who brought the 14-count indictment against Mr. McDonnell and his wife, Maureen, in January.

“Part of the argument the defense is making is these charges are simply the criminalization of normal political activity and that the Supreme Court has said you have to show more than access and influence,” political analyst Bob Holsworth said.

The McDonnells have pleaded not guilty to charges laid out in a 14-count indictment handed up in January, days after Mr. McDonnell left office, saying that Mr. Williams plied the former first family with gifts and loans in exchange for access to peddle his products, most notably a dietary supplement called Anatabloc.

From the start, Mr. McDonnell’s lawyers have argued that federal prosecutors were using an “extralegal” interpretation of state law in order to bring their charges.

They have also drawn on April’s McCutcheon v. Federal Election Commission Supreme Court decision, which voided the overall federal limit on individuals’ campaign contributions, and the landmark 2010 Citizens United decision that lifted restrictions on independent political spending, to suggest the country’s high court has employed a significantly narrower definition of political corruption than was used by prosecutors.

“The governor’s attorneys will seek to conflate campaign financing with the gifts, but his will be a Rubicon to cross: How a Rolex watch could be perceived by a juror as some sort of a campaign donation — a donation, of course, not listed or disclosed as such — beggars the imagination,” said Frank Shafroth, director of George Mason University’s Center for State and Local Government Leadership.

The notion of prosecutorial overreach was also broached in a proposed court filing in April by five former Virginia attorneys general, Democrat and Republican, though the filing was ultimately rejected.

The memo, submitted for the judge’s consideration as a friend of the court brief, said the corruption charges against Mr. McDonnell, a Republican, rely on an “expansive interpretation” of federal law and are alien to any advice they would offer a governor of Virginia. They said such an interpretation creates the possibility of federal prosecution for “normal participation in the democratic process.”

“There are some people who believe it’s been an overreach on the part of the Justice Department, but they have done this in many places throughout the country — not only at the state level but reaching down to the local level,” said Mr. Holsworth, a former Virginia Commonwealth University professor.

Mr. McDonnell is the first Virginia governor to be formally charged with such a crime, but federal investigators have indeed cast their gaze on the commonwealth more than once in recent years. Former Delegate Phil Hamilton was sentenced to more than nine years in prison after being convicted in 2011 on bribery charges associated with his role in securing a salary for himself at Old Dominion University during the time when he was vice chairman of the House Committee on Appropriations.

More recently, federal investigators have been looking into the sudden resignation of former Democratic state Sen. Phillip P. Puckett, who had been in talks with Republican lawmakers about a job on a tobacco commission and a judgeship for his daughter.

“What seems to be happening is the federal authorities are saying, ‘Despite the relative paucity of Virginia laws that address ethics and corruption, we are taking a hard look at the commonwealth, and we believe that there are practices that have arisen that violate federal statute,’ ” Mr. Holsworth said. “It’s almost as if [they’re saying], ‘Until the commonwealth cleans up its own act, until these political figures clean up their own act, we’re going to continue to be here.’ “

Prosecutors will argue that as the finances of the McDonnells became more and more strained, they turned to Mr. Williams for help, promising him the prestige and association of the governor’s mansion in exchange for more than $165,000 in gifts and loans, including $15,000 for catering at their daughter’s wedding, an engraved $6,500 Rolex watch and a New York City shopping spree.

“The government’s question to the jury would be: Do you believe in a governor to whom access and to whose decisions largesse is critical to both access and power rather than the interests of the people?” Mr. Shafroth said.

Mr. McDonnell, meanwhile, has said the gifts were motivated by friendship and that the family has repaid them. His team also argues that nothing was ever promised or given to Mr. Williams, and they have secured an accountant as an expert witness to rebut charges that the McDonnells were struggling financially.

Whether Mr. McDonnell decides to take the stand and make that case himself will be one of the key questions, said Randall Eliason, a former assistant U.S. attorney for the District of Columbia who specialized in white-collar crime.

“I think the jury naturally wants to hear from the defendant in a case like this,” he said. “As a prosecutor, most of the time you’re praying the defendant does take the stand in a case like this, because most of the time it doesn’t go well. They’re not used to cross-examination, and there’s really nothing like that. It’s definitely a high-risk decision.”

The courts denied a motion to try Mr. and Mrs. McDonnell separately. Mrs. McDonnell had argued she would offer testimony in a separate trial but that she would not if tried jointly with her husband.

Regardless of whether he does testify, Mr. McDonnell and his team will likely rely heavily on his longtime reputation as a squeaky-clean politician and former prosecutor himself who had frequently been mentioned as a possible vice presidential pick for 2012 GOP presidential nominee Mitt Romney.

“Throughout his political career, I think people thought Bob McDonnell was a straight arrow — not a politician who would push the edges on corruption at all,” Mr. Holsworth said.

Mr. McDonnell’s brand apparently had such cachet that even as more details about his relationship with Mr. Williams were unfolding last year, Gov. Terry McAuliffe’s campaign actively discouraged state Democrats from openly criticizing the Republican as Mr. McAuliffe tried to advance a campaign theme of bipartisan cooperation.

Court filings indicate that part of the argument could also frame Mr. McDonnell as unaware of some of the dealings between his wife and Mr. Williams, notably that of the Rolex watch. The defense was granted 20 blank subpoenas in June for potential witnesses, which range from members of Mr. McDonnell’s family to an unnamed out-of-state public official.

The huge wild card, said state Sen. J. Chapman “Chap” Petersen, is Mr. Williams, who has been granted immunity by federal prosecutors and could drop additional bombs on the McDonnells’ political and personal lives over the course of the trial.

“For the first time, we’re going to hear from him publicly,” said Mr. Petersen, Fairfax Democrat.

Mr. Petersen was the first, and one of the only, elected officials in either party to call on Mr. McDonnell to fully disclose his dealings with Mr. Williams or step down from office.

“In retrospect, I think if he would have just stepped down six months early and focused on his defense, things may have turned out differently,” said Mr. Petersen. “Who knows?”

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