It’s been a long time coming, but former Virginia Governor Robert McDonnell and his wife Maureen were finally indicted yesterday on 14 counts of violating federal law. Now, before I tell you about all the lavish gifts – including an engraved Rolex watch, a vacation at Smith Mountain Lake Resort, and a private round of golf costing over $2,000 for the ex-Governor and his boys – it’s important that we go over a few really important things.
First, an indictment is only an allegation. When someone is indicted, it means that a Grand Jury has found sufficient evidence linking that person (or people) to an alleged crime, enough to allow a criminal case to move forward against them; and the standard isn’t that high. As the famous saying goes, “a grand jury would indict a ham sandwich.” Second, one of the most basic guarantees in any criminal trial is the presumption of innocence. Every person charged with a crime is presumed to be innocent until proven guilty, and the prosecution – in this case the U.S. Attorney’s Office for the Eastern District of Virginia – must prove each and every element of the crimes charged in the 14 count Indictment beyond a reasonable doubt.
So, now that I’ve bored you with the, “everything in the Indictment (and this article) is only an allegation/burden of proof,” speech, let’s get down to the good stuff. What did Bob McDonnell and his wife allegedly get? What was allegedly promised for it? How did they allegedly try to cover it up? And what laws may have broken in the process?
The long of the short of it is this: according to the Indictment, Star Scientific, wanted to perform clinical trials on two of their dietary supplements, Antabloc and CigRx, so that they could eventually market them as a prescription drugs. In order to do so, their CEO solicited help from the Governor, and showered him and his family in expensive gifts. In exchange, the Governor agreed to help Star Scientific obtain the necessary clearance to move forward with clinical trials.
Specifically, the Indictment states:
“The defendants participated in a scheme to use ROBERT MCDONNELL’S official position as the Governor of Virginia to enrich the defendants and their family members by soliciting and obtaining payments, loans, gifts, and other things of value from [the CEO of Star Scientific] and Star Scientific in exchange for ROBERT MCDONNELL and the [Office of the Governor] performing official actions on an as-needed basis, as opportunities arose, to legitimize, promote, and obtain research studies for Star Scientific’s products, including Anatabloc®. And… the defendants took steps throughout that time to conceal the scheme.”
Importantly, this case is not so much about the taking of gifts in and of itself, as it is about what was allegedly given in return, what the Governor failed to declare, and how the Governor and his wife tried to cover up their actions. Government officials can and do accept gifts on a regular basis and doing so is not illegal. What is illegal however, is failing to disclose gifts, attempting to cover up receiving gifts, and giving something in return for said gifts.
So, what did the Governor and his family allegedly get?
In total, the Indictment states that the Governor and his family received over $140,000 worth of compensation. This included several private flights; $10,000+ shopping sprees for the Governor’s wife; fancy golf outings at private golf clubs; a vacation at a lavish mountain resort; use of a Ferrari; an engraved Rolex; $15,000 to pay the caterer for the Governor’s daughter’s wedding; and a $50,000 private loan, which was given, “without any paperwork.”
What did the Governor allegedly promise in return?
According to the Indictment, the Governor promised that in return for the lavish gifts and generous financial assistance, he would use his position as the Governor to help Star Scientific obtain the necessarily clearance to move forward with clinical trials on their products. In addition, the Governor agreed to meet with top health officials for the State of Virginia, and invite doctors to the Governor’s mansion, in order to promote Star Scientific’s supplements.
What about the cover up?
As previously discussed, taking gifts is not necessarily a violation of the law. However, attempting to conceal those gifts is a violation of federal law. In this case, the Indictment alleges that the Governor and his wife attempted to sell off assets prior to certain dates, in order to avoid having to report them. In addition, the Indictment alleges that the Governor diverted the gifts and loans through his corporation and family members, to avoid disclosing them on his annual gift disclosure filings. Further, after the investigation began, the Governor’s wife tried to cover up the fact she had received expensive clothing from the CEO, by trying to make it look like she had agreed to return the clothes.
What laws were broken in the process?
The Governor was charged in 13 counts of the Indictment (1-13), with one count of conspiracy to commit honest services wire fraud, in violation of 18 U.S.C. 1349; three counts of honest services wire fraud, in violation of 18 U.S.C. 1343; one count of conspiracy to obtain property under the color of official right, in violation of 18 U.S.C. 1951; six counts of obtaining property under the color of official right, in violation of 18 U.S.C. 1951; and two counts of making false statements, in violation of 18 U.S.C. 1014. The Governor’s wife was also charged in 13 counts of the Indictment (1-11 & 13-14), with the same crimes as the Governor, except she was charged with one less count of making false statements, and an additional count of obstruction of an official proceeding, in violation of 18 U.S.C. 1512(c)(2).
A person commits conspiracy to commit honest services wire fraud when they knowingly and intentionally conspire with others to commit wire fraud by devising a scheme that defrauds Virginia’s citizens of their right to honest service by the Governor and uses an electronic wire to effectuate the scheme. In this case, if proven true, the allegations that the Governor agreed to take bribes from Star Scientific and received communications via electronic wire in regards to the bribes, would be sufficient to find the Governor guilty of this crime.
A person commits honest services wire fraud when they knowingly and intentionally devise a scheme to defraud Virginia’s citizens of their right to honest service by the Governor and then use an electronic wire to effectuate the scheme. The only difference between the first count and the second, is that the first count requires an agreement between two or more people to do something illegal, where the second count requires the actual doing of said thing. Here, the same facts that if proven true would be sufficient for a conviction on the first count, would also be sufficient for a conviction on the second count.
A person commits conspiracy to obtain property under the color of official right when they knowingly and intentionally conspire with others, to obstruct, delay, and affect in any way and degree commerce, and the movement of articles and commodities in commerce, by extortion. Here, if proven true that the Governor obtained property, not due to him or his office (property that he was not entitled to), from Star Scientific by using his position as Governor to extort Star Scientific into giving him (and his family) gifts, the Governor will be guilty of this crime.
Similar to the distinction between Count One and Count Two, the difference between conspiracy to obtain property under the color of official right and obtaining property under the color of official right, is that the first count requires an agreement between two or more people to do something illegal, where the second count requires the actual doing of said thing. In this case, if it is proven true that the Governor obtained property he was not entitled to by using his position as Governor to extort Star Scientific, he will be guilty of this crime.
Finally, a person is guilty of making false statements when they make a false statement or report, for the purpose of influencing the actions of a federal agency, or federally insured bank. Here, the Indictment alleges that the Governor submitted financial statements that he knew to be false. If these allegations are true, the Governor will also be guilty of this crime.
So, what happens next?
Should the U.S. Attorney’s office make a plea offer, the Governor may choose to plead guilty to lesser charges, for a promise of a specific sentence, or the Governor may choose to go to trial. If he chooses to take a plea deal (should one be offered), he would have to come to court, withdraw his not guilty plea, and enter a plea of guilty pursuant to the deal. Subsequently, an additional date would be set for sentencing. If he chooses to go to trial, the Government will have the burden of proving beyond a reasonable doubt, that the facts alleged in the Indictment are true, and that they satisfy each and element of the crime charged. If the Government can meet this standard, the Governor will be found guilty and ultimately sentenced to prison; under the sentencing guidelines, he currently faces over ten years. If the Government cannot meet its burden, the Governor will walk away a free man. At this point, what happens next is really anyone’s guess.
The information in this article is provided for general informational purposes only and is not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied