Be prepared for a circus, and an uninspiring outcome.
The trial begins
On July 28, 2014 in the courtroom of Judge Spencer in the U.S. District Court for the Eastern District of Virginia, Richmond Division, former Governor McDonnell and his wife will begin their criminal trial for alleged corruption. Expect a couple of days of jury selection and then a couple of days of opening statements before we get to any testimony.
If you have not had the opportunity to review the indictment in this case, here it is. The alleged corruption in this matter is not a bunch of juicy palace intrigue. Instead, Johnnie Williams appears to have been very generous with the McDonnells, and Bob McDonnell appears to have encouraged Johnnie Williams to meet with various government officials with an eye toward possibly forming a public private partnership with Star Scientific. Counts 1-11 cover the alleged corruption. Counts 12-14 address the alleged cover up. The government’s criminal case regarding the alleged corruption, although politically damaging to the McDonnells, has been weak from the start. Barring some extremely negative testimony from Johnnie Williams establishing a believable quid-pro-quo, the McDonnells are likely to win on Counts 1-11.
The alleged cover up
As with many high profile political prosecutions, it is not the crime that causes the problem it is the cover up. Here is how the alleged cover up worked for the McDonnells. The McDonnells, concerned about the apparent impropriety of the gifts and loans received from Johnnie Williams, did not report them on the annual statement of economic interests [“SEI”] required by Virginia law. Failure to properly report is a violation of Virginia statute and the federal government can not prosecute for this alleged failure. As of now, no Virginia prosecutor has decided to prosecute for such failures.
The McDonnells owned vacation rental property. In Early 2012, the McDonnells needed or wanted a cash infusion to help with vacation rental property. It appears they reached out to Johnnie Williams and Johnnie Williams gave them $70,000.00. This was in addition to a previous $50,000.00 allegedly loaned to the McDonnells. The McDonnells and the government are taking the position that these are loans. If they were gifts, the McDonnells would have been in far more serious danger of state level prosecution for failing to disclose in the SEI’s.
We have federal statutes that criminalize providing false information on loan applications (Counts 12 and 13). As the $120,000.00 constituted loans, the McDonnells were required to disclose their existence on loan applications to TowneBank and Penfed Federal Credit Union. The McDonnells do not appear to deny that they did not disclose the loans on the loan applications. This would allegedly be done to avoid any negative political fallout from accepting the money. This is the basis for Counts twelve and thirteen of the Indictment. To win this part of the case, the McDonnells need to show that failing to list the loans was mere error, and there was no intent to defraud either bank.
Count 14 (obstruction of justice) is thrown in only to make a point that the government is aware of the McDonnells continued attempts to prevent the investigation from resulting in prosecution.
What should we expect at trial?
The most foreboding aspect of the trial is a motion filed by the McDonnells that has since been granted allowing the McDonnells to issue up to twenty subpoenas to yet unnamed witnesses to appear beginning August 18, 2014. This is the anticipated start of the defense part of the case. The Defense has lost a motion regarding expert witnesses, and has been admonished about the parade of character witnesses the defense wished to call.
Still, if the defense begins on August 18, and the trial starts on July 28 with a week of jury selection and opening statements, we are still going to have to wade through two full weeks of oral testimony on behalf of the government regarding a handful of incidents. The McDonnells will then likely have two more weeks to present their own side, ending the testimony at the very end of August. The jury will be forced to return after labor day to hear closing arguments and deliberate.
There will be an attempt by one or both sides to enter a plea for just counts 12 and/or 13 over the next week. We will not find out about it until or unless such a plea is reached.
Without having heard any official sworn testimony: If the matter goes to trial, we are in for weeks on end of boring, repetitive, and unnecessary testimony from the prosecution followed by even more boring, repetitive, and unnecessary testimony from the defense. The chance of conviction on any of the corruption charges is low with a good chance Judge Spencer will dismiss some or all of these counts. Conviction on the loan fraud charges is likely. The obstruction of justice charge depends heavily on how the jury feels after sitting through this entire ordeal.
At least we will be mildly entertained on a daily basis for the next one and a half months.