Why Five Ex-Attorneys General Are So Wrong

mcdonnells arraignedBy Peter Galuszka

The practice of law in Virginia is supposed to be an honorable profession.

The state, which produced such orators as Patrick Henry and Thomas Jefferson, loves its lawyers perhaps much more than individuals who actually create or do something of value. It could be why the state has so many of them.

This makes a filing in the McDonnell corruption case by five former attorneys general all the more despicable. The bunch includes both parties and is made up of Andrew P. Miller, J. Marshall Coleman, Mary Sue Terry, Stephen D. Rosenthal and Mark L. Earley.

They want corruption charges thrown out against former Gov. Robert F. McDonnell, who, with his wife, has been indicted on 14 federal corruption charges. Their trial, expected in July, will explore charges they misused their position to help a dietary supplement maker who showered them with more than $165,000 in personal gifts and loans.

The five attorneys general claim that there is no clear evidence the McDonnells did anything wrong. Odd, but I thought lawyers knew enough not to try and bias a case that has been through the indictment and arraignment phase and is due for trial but then I didn’t go to law school.

Their other reason is actually more upsetting. Their filing claims that future governors might be reluctant to invite state business leaders on foreign trade missions or to host campaign donors at the governors mansion, according to The Washington Post.

Huh? I don’t see the connection. Of course, governor’s can host trade missions. They can invite people to the Executive Mansion. It’s just that, in the process, the governors can’t reasonably be OK with accepting a $6,500 Rolex from the head of Kia Motors or a special loan for his failing beach houses from the local rep of Rolls Royce North America.

It is stunning that the five attorneys general are caught up in “the Virginia Way” of having hardly any controls on gift giving and spending that everything is OK. They also can’t seem to move beyond the conceit that  anyone who occupies the governor’s chair must naturally be an honest gentleman or gentlewoman.

This kind of thinking helps explain nothing substantive has been done to reform the state’s ethics laws. I can give you five reasons why.

13 Responses to Why Five Ex-Attorneys General Are So Wrong

  1. A McDonnell supporter friend sent me the story yesterday morning. “SEE?” he challenged me. “From BOTH parties!” I was less impressed by that than the thought that 1) most of these AGs served in times when “the Virginia Way” gave governors a little more leeway and 2) that most of the signers had themselves aspired to be governor at one time or another. The self-interest aspect of the latter makes their coverage of the McDonnell case even more suspicious. Do they want us to believe these folks came together spontaneously, or is it more likely that they came together at the behest of the McDonnells’ attorneys. None of it passes the smell test.

  2. “Ingratiation and access… are not corruption.”

    That quote was cited by Vivian Page in the Pilot, and given the ink is still fresh on the 5-4 Supreme Court decision, I’m sure it will have an impact on this case. It is worth noting that McDonnell never ordered anybody in the state to buy Johnny Williams snake oil cure, didn’t direct a university to spend research dollars on it, and if he personally endorsed the product, well, he has the same First Amendment rights as me.

    His behavior was disappointing and her behavior was over the top. As I said before, I’m not at all surprised there is an indictment pending and we have to await the trial to see what comes. They are presumed innocent.

    Why the five former AG’s weighed in is somewhat hard to fathom. It does strike me that methods and practices they are defending do no credit to Virginia. The McDonnell’s actually solicited some of these goodies, and did so because of personal financial duress. This is going to trial.

    Had Johnny Williams merely lavished campaign contributions on McDonnell’s PAC and other key individuals or committees, for the same dollars he would have achieved far more and nobody, nobody would be in any legal peril. That sentence above in the McCutheon decision should give us all some pause.

  3. Peter is outraged by the McDonnells’ actions, as he should be, and he is impatient for the General Assembly to pass real ethics reform, which he should be. But he’s not willing to stop there. He wants to prosecute McDonnell for breaking a law that he wishes existed but doesn’t, and he endorses the prosecutors’ application of novel legal theories in order to mete out the punishment he believes the governor and his wife deserve anyway.

    The McDonnells’ lawyers and the five former AGs argue that nothing the McDonnells did for Jonnie Williams constituted an “official act.” That strikes me, as a non-lawyer, as an important distinction. Peter denounces the AGs without ever addressing this issue. But it’s fundamental.

    If Peter thinks the “official act” distinction is meaningless pettifoggery, is he willing to apply his new standards to everyone? Will he be able to summon the same outrage and indignation if the perpetrator is a Democratic governor? Will he denounce, say, the gift of a Caribbean vacation by an individual who subsequently gets a gubernatorial appointment? Or will he draw his own arbitrary distinctions and argue, “That’s different”? Of course, it’s always “different” — no two cases are ever identical. Where would Peter draw the line?

  4. “He wants to prosecute McDonnell for breaking a law that he wishes existed but doesn’t, and he endorses the prosecutors’ application of novel legal theories in order to mete out the punishment he believes the governor and his wife deserve anyway.

    The McDonnells’ lawyers and the five former AGs argue that nothing the McDonnells did for Jonnie Williams constituted an “official act.” ‘

    Jim, neither one of us is a lawyer, but you tend to see things in black and white. There are such things as violation of “honest services” under federal corruption law that have played a role in lots of public corruption cases including Blog’s in Illinois. You are stuck on an “official act” but you are simply assuming there wasn’t one and my understanding of federal corruption law is that the definition may not be entirely empowering or relevant as you suggest.

    “Endorsing the prosecutors application of novel theories?” WHo says so? You? Why are these “novel theories.” Are you qualified to say what is novel and isn’t?

    The attorneys general have their view (funny Cooch didn’t weigh in) but the fact is that the feds investigated the McDonnells for months and won indictments against them. Judges have consistently refused to simply to out the charges. The cases must go forward. Are you saying that federal prosecutors and judges are incompetent.

    Well, I guess you are entitled to your view, but I think I’d try to make more sophisticate arguments than just saying no “official act” was taken.

    You also overlook that some of the charges have to do with McDonnell allegedly lying on federal bank documents about the loans he got from Jonnie Williams. Don’t think that falls into the “official act” category as is the allegation the feds supposedly used to convince McDonnell to cop a plea.

  5. There’s another problem.
    The prosecution is not entirely focused on public corruption – the defense attorneys are because that’s their MEDIA strategy.
    The two strongest counts are (a) mortgage fraud and (b) obstruction of justice. The Governor and his wife left $100,000+ of Johnnie Williams debt off their application for $2M+ of mortgage loans. That’s a felony if it was done intentionally.
    Second, Maureen attempted to get Johnnie Williams to change his story when talking to federal investigators. That can constitute obstruction of justice.
    Interestingly, the ex-Attorneys General didn’t address those charges. Nor have the McDonnells filed for them to be dismissed – because they are strong charges.
    The media should act like the Fourth Branch, ask more critical questions and to stop parroting the narrative and media strategy driven by defense counsel and their jury consultants in the case.

    • Scott, that’s a good point about the mortgage fraud charge. Of course, falsifying information in a mortgage application is a crime regardless of what the General Assembly does with ethics reform, and it has nothing to do with the argument advanced by the former AGs.

  6. Jim
    With all due respect to Scott, I made the point about the bank documents in my earlier reply to your comment.
    Also, The Post reported a while back that the feds offered McD a deal: plead guilty to the bank charges and they’d drop the corruption ones and let Maureen off. No deal, he said.
    What is interesting is why the five attorneys general don’t seem to know about the bank fraud charges.

  7. ” He wants to prosecute McDonnell for breaking a law that he wishes existed but doesn’t, and he endorses the prosecutors’ application of novel legal theories in order to mete out the punishment he believes the governor and his wife deserve anyway.”

    Peter indicted the McDonnell’s? Wow. If I knew Peter had indictment power I would have been nicer to him in these comments over the years.

    All Peter wants is for the former attorneys general to back off and let the justice system proceed. I want that too.

    Peter also had the good grace to avoid a compelling fact in the General Assembly’s failed ethics reform effort this year – all of the proposals with any teeth came from the Democratic Party representatives while the preponderance of resistance to real ethical reform came from the Republicans.

    Bill Howell, in particular, seemed to have no interest whatsoever in real ethics reform.

    Richmond is a cesspool of corruption. The fact that most of the corruption is legal is just appalling.

    And … speaking of lawyers in Virginia – Do you believe that legislators who are practicing attorneys should vote for or against the judges in front of whom they will try cases?

    If that isn’t a conflict of interest I don’t know what is.

    The same legislators who insist that Thomas Jefferson be referred to as Mr. Jefferson ignore his thinking ….

    ” Thomas Jefferson, while minister to France during the Constitutional Convention, wrote to James Madison that he was most impressed by the independence of the judiciary established in the Constitution. More than two centuries later, we still do not live up to this expectation. We need to jealously guard its integrity in order to ensure the public that justice will be done. We can do better.”

    http://www.roanoke.com/opinion/point_counterpoint/reform-would-select-best-qualified-judges-not-best-connected/article_701bd3df-f3fb-553f-ab2c-0f847c4160f3.html?mode=story

  8. Groveton,
    Thanks for the support. Mr. Bacon blames me for everything — even federal indictments.
    As for you indictment, I am sorry that I cannot provide much comfort. We Junior G Men take a lot of time to gather incriminating evidence and we’re not at all done with you yet.

    • You forget that I live within the protective bubble of NoVa. Not only are our streets paved with taxpayer-funded gold but there is a general agreement between the feds and the residents of NoVa whereby no legal action is ever taken against NoVa residents – regardless of the offense. One need only follow Jim Moran’s personal behavior over the years to know I am telling the truth.

      Stunningly, Jim Bacon’s seemingly paranoid delusions about NoVa are, in fact, all true. For example, none of us up here work for a living. Why should we? We just take a shovel and a burlap bag out to the town money trough and shovel us up a bag full of other people’s money.

      Indict me – a lifelong NoVa guy? Ha! That’s rich.

  9. Peter, loved your article. It strikes me that “the Virginia Way” is just a euphemism for corruption. – Kay

    • Agreed, look at the $50 million plus Silver Line station in front of SAIC’s building on Route 7 in Tysons. Voted on by the then Chairman of the Fairfax County Board of Supervisors who was, at the same time, a VP for SAIC. And a few days before he left office for the private sector, the then Fairfax County Attorney opined there was nothing wrong with Connolly’s actions. Virginia’s government at both the state and local levels is just as corrupt as New Jersey or Chicago.

  10. More on the Silver Line and Virginia corruption.

    1. Fairfax Times, Still no oversight on Dulles Rail project?, April 3, 2014
    Still no oversight on Dulles Rail project?

    A Financial Management Oversight Review of the Washington Metro Area Transit Authority prepared by a Philadelphia-based accounting firm for the Federal Transit Administration has found instances of lax internal financial management and budget controls at WMATA. The period studied was from April 2012 to March 2013. It seems likely that procurement and federal contract management problems have existed at WMATA for a far longer period.

    Over the last three years, federal audits of the Metropolitan Washington Airports Authority found similar instances of management and operations problems. MWAA has taken steps under the leadership of Jack Potter to address some issues found by the audits. While transparency and public information reporting from MWAA Board meetings have improved, no independent Dulles Rail project oversight exists as yet.

    It is time to correct this deficiency, in light of continued delays in reaching Phase 1 “substantial completion” required for MWAA to turn over the project to WMATA to allow them to complete pre-opening testing operations. On April 9, 2014, the six-month delay deadline provided in the Phase 1 construction contract for substantial completion will occur.

    In February 2014, MWAA reported as follows:
    The contract requires the submission to meet criteria in 12 different areas. Seven of the 12 areas were determined to be deficient. Examples of problem areas include:
    • Failure to deliver certificates of occupancy for almost 20 wayside buildings, including stations, power substations and the tunnel;
    • Performance issues with the Automatic Train Control System that prevent WMATA from beginning Operational Readiness Testing;
    • Failure to fully correct defects that impact operations, including track gage problems;
    • Elevator and escalator problems, and water leaks in buildings;
    • Incomplete documentation for testing requirements and safety/security verifications.

    Some of these problems appear to have resulted from software changes made to the train control communications system by a subcontractor. As yet, MWAA has not issued any information regarding the potential cost and schedule for completing remedial work for any of the problems disclosed.

    Based on an interview given by MWAA Board Member and former U.S. Congressman Tom Davis to Peggy Fox at USA Channel 9 on April 1, it appears that little or no effort is being made currently to fix the train communications problems. The possibility of litigation between MWAA and its Phase 1 contractor, Dulles Transit Partners, seems increasingly likely.
    Also this month, MWAA intends to apply for $1.9 billion in Transportation Infrastructure Finance and Innovation Act (TIFIA) program credit assistance with a majority of funding to help reduce projected Dulles Toll Road toll costs. So far, no information about possible financial impact of the TIFIA assistance on toll rates has been made public. The public is being treated as a willing partner in financial negotiations that have occurred in secret at numerous meetings between staff at U.S. Department of Transportation and Dulles Rail partners.

    Despite spending $3 billion in mostly Virginia taxpayer funds over the last decade on Phase 1 Silver Line capital costs, the Dulles Corridor Advisory Committee has acted like a rubber stamp to MWAA Board actions. Until two years ago, MWAA controlled the Chairmanship of the DCAC. For 2014, Loudoun County Board Chairman York has been appointed to be DCAC Chairman.

    To avoid the types of problems experienced with Phase 1, York must demand expanded DCAC authority to permit independent review and advice with expertise including engineers, traffic and revenue analysts, accountants and financial experts and other professionals. The DCAC needs a budget to conduct independent review of MWAA consultants and project planners.

    While the recently reported problems on Phase 1 are likely to delay its opening for six months, far larger long-term problems exist at WMATA, most of which have yet to be reported.

    Rob Whitfield, Dulles Corridor Users Group

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