I attended the McDonnell hearings this morning at the 4th Circuit Court of Appeals in Richmond. As expected, it was a packed courtroom consisting almost entirely of the press (including The Bull Elephant’s representative, me) and an incredibly large number of attorneys who worked on the case.[read_more] (You could tell the difference between the members of the press and the attorneys by what type of clothes they were wearing.) Bob McDonnell was in attendance.
Presiding over the proceedings was Judge Diana Gribbon Motz (Clinton appointee). The other judges were Judge Robert B. King (Clinton appointee) and Judge Stephanie D. Thacker (Obama appointee).
Neal J. Francisco appeared for Governor McDonnell and Richard D. Cooke appeared on behalf of the Department of Justice.
By way of background, on September 4, 2014, Gov. Bob McDonnell was convicted of violating the Federal honest-services fraud statute (18 U.S.C. § 1346) and the Hobbs Act (18 U.S.C. § 1951(b)(2)) which prohibit government officials from engaging in “official acts” in exchange for bribes. Everyone knows that Star Scientific’s Jonnie Williams gave the Governor and his wife gifts. The legal question is did Bob McDonnell engage in “official acts” in exchange for these gifts?
The Federal government alleged the following events were “official acts”:
- In August 2011, Maureen McDonnell organized a luncheon at the Executive Mansion where one of Star Scientific’s products, Anatabloc, was at every table setting. The Governor appeared briefly to say a few words.
- Governor McDonnell asked a subordinate to send a staffer to a meeting with Williams, immediately after which the staffer sent Williams a “blow-off email.” (I wish more people had done this.) Nothing else happened.
- Governor McDonnell suggested to two subordinates that they meet with a representative of Star Scientific. The subordinates disagreed about whether Governor McDonnell made the suggestion, they never met with anyone, and they never heard about it again.
- Governor McDonnell’s wife invited Williams, and private doctors recommended by Williams, to a reception for “Healthcare Leaders” and at which Anatabloc was not promoted or otherwise featured. Nothing else happened.
- Governor McDonnell sent an email to his chief counsel asking the counsel to “see me about Anatabloc issues at VCU and UVA.” The counsel did not recall actually seeing him and nothing else happened.
An “official act” under the Federal bribery statute is defined as: “[A]ny decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”18 U.S.C. § 201(a)(3), (b)(2)(A).
Governor McDonnell’s appeals brief sets forth the correct (in my opinion) standard for what constitutes an “official act”:
“The statutory definition in § 201(a)(3) requires that a government official promise to exercise, or induce others to exercise, actual governmental power. That is, the official must make a decision or commitment on the sovereign’s behalf on a specific matter—such as by obtaining a visa, awarding funding, or signing a bill—or induce someone else to.”
McDonnell brief, p. 27.
And further:
“The Government’s case against former Virginia Governor Robert F. McDonnell is built on a boundless definition of bribery that the Supreme Court has rejected, that the statutory text precludes, and that contravenes the decisions of every court to consider it. This definition would, if adopted here, make virtually every elected official in the Fourth Circuit a criminal.”
McDonnell brief, p. 16.
The actual jury instruction, proposed by the DOJ, and adopted by trial court Judge James R. Spencer (Reagan appointee) without change, was that “official actions may include acts that a public official customarily performs, even if those actions are not described in any law, rule, or job description.”
Neal Francisco opened by arguing that the DOJ’s definition of “official act” (as set forth in the jury instruction) could encompass something as innocuous as a photo op. Amazingly enough, DOJ counsel Cooke didn’t appear to disagree with this assertion during his argument. Francisco pointed out there is a significant difference between access to a public official and advocacy for a specific decision. He noted that Judge Spencer refused to give an instruction concerning a “good will gift” to wit: “a good will gift to an official to foster a favorable business climate, given simply with the generalized hope or expectation of ultimate benefit on the part of the donor, does not constitute a bribe.” United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998).
The only instruction Judge Spencer was willing to give regarding limiting the jury’s power to convict was the so-called “good faith” instruction, namely that if the receipt of the gifts was done in good faith that it was not illegal to do so the jury could return a not guilty verdict.
A major thrust of Neal Francisco’s argument was that, at the very least, Judge Spencer should have also limited the broad definition of “official act” by providing instruction as to what did not constitute an “official act.” This argument appeared to find some sympathy with Judge Motz.
Judge King seemed particularly hostile to Francisco’s arguments stating that he believed that Governor McDonnell’s proposed jury instructions were legally erroneous, that the Governor may have waived his right to object to jury instructions because the instructions were not objected to before they were read to the jury (even though the attorneys for Governor McDonnell had objected to the instructions three times previously) and stating that the “good faith” instruction was a sufficient limiting instruction that was extremely beneficial to the Governor. Judge King also noted that jury instructions are subject to an “abuse of discretion” standard pursuant to which Judge Spencer has considerable discretion in choosing the specific wording of his instructions.
Judge Motz seemed to agree with Judge King that Governor McDonnell’s proposed instructions were legally erroneous but she appeared to back off that statement during the rebuttal by Neal Francisco. She also noted that, as far as quid pro quo was concerned, there was a lot of quid but not so much quo.
Judge Thacker seemed the most sympathetic to Governor McDonnell’s case.
Richard Cooke essentially repeated the DOJ’s legal arguments set forth above and repeated the factual circumstances of the alleged “official acts” of Governor McDonnell. He wasn’t interrupted as many times as Neal Francisco was.
The only other issue argued today, and it took up only about 5% of the allotted time, was Governor McDonnell’s argument that Judge Spencer should have allowed prospective jurors to be asked if they had formed an opinion as to the guilt or innocence of Governor McDonnell based upon pre-trial publicity. This question was actually jointly agreed to by Governor McDonnell and the DOJ and Judge Spencer struck it without explanation.
In conclusion, things didn’t go as well for Governor McDonnell today as I would have liked to see. Judge King was hostile, Judge Thacker seemed sympathetic, and Judge Motz seemed at best leaning against Governor McDonnell. However, you can go broke betting on how Judges will actually decide a case after oral argument.
I think the government clearly overstepped its bounds here in an overly broad definition of “official acts” and if this decision is allowed to stand any number of innocuous acts committed by public officials could potentially now be criminal acts. In my opinion, it is also unfair to put a person in jail unless an average citizen can determine what conduct is prohibited. I express no sympathy for Governor McDonnell’s behavior. He should have never accepted any gifts of any kind from Jonnie Williams. However, he should not have been convicted of any crime.
Governor McDonnell outside the courtroom today:
32 comments
The unrepentant Ex VA Gov. Bob McDonnell still says he has “Done Nothing Criminal” nor violated his oath of office.
McDonnell was never convicted of 18USC201 Bribery.
Yet he appealed against a Bribery conviction.
Very weird that the SCOTUS appeal would even be heard rather than dismissed outright as an irrelevant pleading.
So what is going on here?
What is the game that prosecution, defense, media, judges and justices should collude to speak of McDonnell’s convicted crimes as bribery?
McDonnell’s is convicted of 18USC1951(b)(2) RICO “extortion” ”obtaining of property from another, with his consent, induced by wrongful use of “ . . .”color of official right.”
That federal felony is also criminal under the CONSTITUTIONAL ethics law of VA18.2-111 “Embezzlement”.
This is also common law, as written in the hearts of the people by their creator though often obscured by a person’s sin, and commonly rediscovered in the ‘smell test’ such as employed by the jury.
The “Obtaining property under color of official right” applicable meaning of VA18.2-111 restated with mathematical precision is this:
√ When a person receives a gift or ANYTHING of value (i.e. utility) (whether tangible or intangible)
√ (whether in any degree durable or ephemeral – so long as temporal)
√ (and that ANYTHING is a private good and not a public good [i.e., a good whose value increases the more widely it is possessed – such as the rule of law)
√ from someone other than their employer
√ that they received by virtue of their holding an office belonging to their employer
Then that thing received belongs to their office not to their person.
If the receiver ‘converts’ the ‘gift’ to their personal property then they have, according to VA statute, perpetrated embezzlement and larceny.
Bob McDonnell is also criminal under God’s law – “THOU SHALT NOT STEAL.”
http://www.richmond.com/news/local/article_58243371-1866-5ef8-a5af-b2679abc46de.html
[…] Prior thorough coverage from TBE’s Dave Webster for the oral argument can be found here. […]
Dave,
Excellent piece and just having graduated Law School I would certainly agree this case is about a modern day lynching. The DOJ went after the Governor because they wanted a democrat in office to champion Obama care. The Democratic Governor did just that and almost was successful. The key ingredient for Obama care is for people who are on welfare may receive free heath care. If had not been for a reporter asking a State senator about the significant increase in tax’s to support Obama Care it would have passed . With out a significant contribution by the State people who are on welfare must pay just like the rest of us. Their plan back fired. The State Senate voted the wording of the budget down. Obama care basically died in Virginia and Our Governor goes to jail. When will Virginia wake up again.
So ron, what is your basis of law and fact re:McDonnell’s actions? When Democrats do the right thing for the wrong reason do you think that could possibly justify a Republican’s, (even McDonnell’s) VA18.2-482, VA18.2-481(5), Va18.2-111 VA18.2-447/448 & 18USC1951 custom of FELONY evidenced in the public record like McDonnell and essentially ALL members of the VA Bar and VA GA made?
When the accuser (Satan) accuses you do you really have grounds and authority to compel your accuser’s recusal because your opponent is more evil than you? What makes you think that McDonnell is so much better that you? If Republicans wish to prevail they must attend to their own righteousness more that their opponents’ evil.
In fairly recent history I think you might look at the USA’s not so civil war for a not-so-personal example to instruct you on what is actually vain or not vain.
Good summary. Thanks for posting.
Thanks for reading.
Yes, Mr Webster’s demonstrated repertoire of methods for ‘betrayal of trust’ are most instructive.
There does appear to be at least one lawyer that is not so shamed by their least yet customary felony (VA18.2-482) that they can bear cleaving to the law and its facts.
http://rdeliason.com/2015/05/11/the-key-issues-in-bob-mcdonnells-appeal/
Hold on just a minute now – Weren’t the McDonnells convicted of
18USC1951(b)(2) “obtaining of property from another, with his
consent, induced by wrongful use of “. . “color of official right”?
That is extortion with a strong flavor of VA18.2-111 “Embezzlement,
Larceny” of a ‘gift’ that really belonged to the OFFICE not the officER.
The McDonnells’ were not convicted of 18USC201 “Bribery”.
And could not have been because that law applies to federal public
officials not state public officials (including the office of First Lady).
So the ‘official acts’ and ‘quid pro quo’ argument means nothing in the appeal of the crime for which Gov.Bob was convicted.
The McDonnells were also convicted of federal fraud in defrauding both Jonnie Williams and the People of Virginia of the honest services their office requires by law in a conspiracy to commit VA &
common law bribery.
The McDonnells’ appeal is either irrelevant non-sense or smoke to cover a fixed appeal.
Likewise the brief signed by many VA government officers that are deemed by law and professional standing to know the law. Those persons have submitted their VA18.2-481(5) felony to the judges asking them to be party to their felony of “Resisting the execution of the laws under the (mere) color of its (the laws) authority”.
The AG’s and other lawyer’s motive is due because they are public record conclusively evidenced as being GUILTY under the same laws under which McDonnell is GUILTY.
When the outcome is more important than either the law or justice there is no need for the AG’s to read the court’s conviction ruling.
This is our current events proof that our “Republic of Laws” has
been overtaken by the VRICO ambitions of men in office who raise
their criminal gang above the state’s authorizers – its People – and
the People’s lawful law. AND against God’s law.”THOU SHALT NOT
STEAL”.
That such adultery and VRICO conceits are defined as VA18.2-481(5) TREASON and VA18.2-111 EMBEZZLEMENT of the law by its officers is no accident.
—————————–
The McDonnell-McAuliffe drama is not finished yet.
Customary Felon is still Felony.
What is civilly permitted under the ‘new’ ‘ethics’ legislation is STILL prohibited crime under :
* Felony 18USC1951(b)(2) “obtaining of property from another, with his consent, induced by wrongful use of “. . “color of official right” (EXTORTION)
&
* VA18.2-111 “EMBEZZLEMENT, LARCENY” (at misdemeanor level prospectively but at felony level in the present and past) of a ‘gift’ that really belonged to the OFFICE not the officER.
In the future these crimes could be entirely avoided by only accepting gifts in the OFFICES’ name ONLY and accounting for the transaction with an official receipt.
In the past these customary personal felonies by Virginia officials are conclusively evidenced and still due the full weight of the law.
**********************
In the past those legion of officials with customary felony have been protected from a grand jury’s indictment because of official (and felonious) subversion of VA19.2-191 &200.
It appears that the only available remedy is ***sufficiently broad citizen education on the power and duty of Virginia grand and petite juries***.
Only then will some grand jury shake off the essentially criminally placed leash put on them by their handlers (judge & CA)
Given ANY Virginia grand jury fully informed of their VA19.2-191 & 200 authority & duty a sweeping probable cause indictment of every living member of the Virginia GA and Bar association would then issue from the grand jury – but no judge or potential pro tempore judge could even attempt to try the cases short prompting their immediate arrest on contempt and TREASON.
The only person remaining with authority to adjudicate the matter would be a NON-lawyer governor like Terry McAuliffe and his adjudication would be constitutionally limited to PARDON UNDER PAROLE OATH.
Then freedom well and durably achieved might arise from VIRGINIA and sweep the nation due its immediate and HUGE practical and spiritual benefit.
———————————-
It seems unlikely that a new trial for Bob could produce a different result than “McDonnell is proven GUILTY” unless the trial is fixed.
Yet ordering a new trial would allow Gov. McAuliffe to preemptively pardon the x-gov & first lady. Bob & Maureen could come under our Governor’s broadly offered pardon under parole oath.
Since the Virginia government has strictly speaking become a statutory VRICO gang
* where at the very least every member of the Virginia Bar is conclusively evidenced in public record as perpetrating many counts of VA18.2-111, VA18.2-481(5) and VA18.2-482 felony
and
* with every living member of the GA having at least probable cause that they perpetrated many counts of the same felonies with the addition of 18US1951 felonies,
it seems that the only feasible way of getting over this customary yet greatly evil in consequence corruption is by our Governor’s VERY broad grant of PARDON UNDER PAROLE OATH.
You’re right the McDonnell’s were not convicted of bribery. The district court defined “official act” for the honest-services and Hobbs Act counts using the federal bribery statute’s definition in 18 U.S.C. § 201(a)(3). Here is a link to the indictment. https://s3.amazonaws.com/s3.documentcloud.org/documents/1008121/mcdonnell-indictment.pdf
INDICTMENT is not CONVICTION. Only CONVICTION can be appeal by a defendant. The officers of the court on all three sides added confusion in the due process. The were several purposes in this and none appear honorable.
You, an officer of the court deemed to know the law by Va law and your professional standing appear party to that dishonor even if after-the-fact.
It does appear that the codified Hobbs act may be in part both 18USC201 and 18USC1951 but I am not certain of that.
I am certain that the McDonnells CONVICTION was mostly in 18USC1951(b)(2) “obtaining of property from another, with his consent, induced by wrongful use of “. . “color of official right” . That is a USC EXTORTION with the flavor of VA18.2-111 “EMBEZZLEMENT,LARCENY” .
Allegations of 18USC201 BRIBERY were objectionable but ignored by by all in that the ‘fix’ that might be was not ordered yet – Those allegations of charges of crimes that could only be brought in a Virginia court under Virginia law appears to be intentional chaff.
Both your use of the terms “official act” and your very tainted equivocation of it into “public act” are intentional chaff and serve to:
1) “Resist the execution of the (true, duly authorized) laws under the (mere) color of its (the true laws’) authority”
and
2) “wrongfully use or adulterate” that which you received in trust to administer by your office ( of the court, lawyer) .
The first is a high customary felony of all living members of the VA Bar called VA18.2-481(5) TREASON. Sometimes this guilt is had by being accessory-before-the-fact by felony violation of VA18.2-482 “MISPRISION OF TREASON”
The second is the VRICO customary felony of almost every member of the Va Bar and is an included variety of VA18.2-111 “EMBEZZLEMENT, LARCENY”
All members of the VaBar including every judge Va or Va Federal are past due indictment since conclusive evidence was established in the public record by the perpetrators.
By far the most feasible form of adjudication is our Governor’s very BROAD GRANT of PARDON under the virtue of PAROLE OATH.
Correction: those crimes may also at last be adjudicated by God when no other authority has properly delegated jurisdiction
Both your use of the term “official act” and your very tainted equivocation of it into “public act” are intentional chaff and serve to:
1) “Resist the execution of the (true, duly authorized) laws under the (mere) color of its (the true laws’) authority”
and
2) “wrongfully use or adulterate” that which you received in trust to administer by your office ( of the court, lawyer) .
The first is a high customary felony of all living members of the VA Bar called VA18.2-481(5) TREASON. Sometimes this guilt is had by being accessory-before-the-fact by felony violation of VA18.2-482 “MISPRISION OF TREASON”
The second is the VRICO customary felony of almost every member of the Va Bar and is an included variety of VA18.2-111 “EMBEZZLEMENT, LARCENY”
All members of the VaBar including every judge Va or Va Federal are past due indictment since conclusive evidence was established in the public record by the perpetrators.
By far the most feasible form of adjudication is our Governor’s very BROAD GRANT of PARDON under the virtue of PAROLE OATH.
Thanks for the report, Dave.
My pleasure Catherine
Bob McDonnell needs to go to jail. He has been found guilty by a jury. Anybody who wants Bob McDonnell to get off is either;
A. Part of the corporate corruption that runs Virginia government.
B. One of Bob’s big government, big spending, power company buddies such as Speaker HB 2313 Howell.
C. One of Bob’s family.
It is incredible that the Federal Government comes in to help clean up the corporate corruption in Virginia government, and lug heads try to get in the way? How stupid and ignorant can one be?
That is what is really politically motivated, the opposition to the McDonnell indictment. The real investigation needs to be about why a Regan appointed judge did not follow sentencing guidelines, and only gave McDonnell 2 years????
How can anyone say that the McDonnell charges were politically motivated now that Menendez has been charged?
As to A, B, and C: I do not want Bob McDonnell “to get off,” and I firmly believe that if the conviction is overturned and a new trial does not occur he has still not “gotton off.”
I do want the convictions overturned. None of A, B, or C applies to me. The expansive definition of honest services fraud is not fair to any politician. It puts politicians nationwide in the crosshairs for simply having relationships with lobbyists. A rolex, use of a vacation house, low interest loans, use of an expensive car all look bad but they do not constitute honest services fraud. Bob McDonnell did, on the other hand, fail to comply with Virginia gift disclosure requirements which can still be pursued.
You say that the expansive definition of honest services fraud is not fair to any politician?
Well, is the current system of campaign finance and PAC’s fair to any middle-class taxpayer?
The Supreme Court has ruled that corporations can spend as they please to purchase politicians as they please. Well, here is another way to possibly deal with the ” vending machine legislation” created by that decision.
This country is going down the toilet due to corporate control via their checkbook. A lobbyist is worthless without access to the proper funds.
The relationship you speak of with lobbyist’s is actually made possible due to the access that a lobbyist has to funds for PAC’s, campaigns, an occasional Safari, Ferrari’s, Rolex’s, corporate jets, etc..
The relationship in not with the lobbyist, it is with the lobbyist cash. Plain and simple. No cash, no relationship, eventually no lobbyist.
I guess that you like having a power company run Virginia government via their checkbook? Are you a lobbyist?
As of now, the jury has ruled that McDonnell is a convicted felon, on many accounts. He is a criminal who belongs behind bars, according to our legal system. 2 yrs. isn’t enough.
Non-criminal Gifts to the office
are not the same as
Criminal Gift to the officER.
Paul, The officers of the federal court in Virginia are also member of the Va Bar and bound by VA1-248 such that Virginia statutes MUST also apply in a VA federal court least its officers conclusively evidence themselves as being guilty of VA18.2-481(5), 482 & 111 felony.
The sin of our elected leaders and other officers has brought them into a double bind, has brought them into bondage, where they no longer belong to Virginians. We should all find this intolerable and DEMAND that our governor free them and us by lawful Pardon under the virtue of PAROLE OATH.
Dave, we would like to get you on our radio show today at 6:45 or 7:05 AM – we don’t have your number so text us: John Fredericks Radio Show – 757-692-1710 or just call in and we’ll get you scheduled at 804-454-1366 -Thanks for covering this! John Fredericks
Mr. Fredericks. My apologies. I have been in court all day and didn’t see this until now. I will call.
Wow, based on the McDonnell (and the Menendez) case, Hillary is likely to get the guillotine.
Come on now she only pimped away for cash ($145M to the Clinton Foundation) 20% of our strategic Uranium resources comprising 50% our total production output to our close and dear friend Vladimir Putin. I’m sure she can whip up a workaround recipe for this missing element of the nation’s nuclear defense deterrent by having Bill make cost effective spitballs on the side as he travels the globe on the Foundation’s dollar looking for his next likely squeeze. As any Democrat would tell you – How could anyone possibly even compare these two cases?
“… on September 4, 2014, Gov. Bob McDonnell was convicted of violating the Federal honest-services fraud statute (18 U.S.C. § 1346) and the Hobbs Act (18 U.S.C. § 1951(b)(2)) which prohibit government officials from engaging in “official acts” in exchange for bribes.”
Does it bother anyone that Virginia is being controlled as a province of the ‘federal’ power, as is evidenced by the citing of USC? By appearances, the State of Virginia is very limited in its exercise of sovereignty. (This is just the tip of the iceberg.)
I didn’t appreciate the Federal government coming in here and presuming to “help” us Virginians police our own politicians. We are not powerless. There was no failure to prosecute Bob McDonnell for violations of Virginia law. He didn’t violate the law.
Not so. re “There was no failure to prosecute Bob McDonnell for violations of Virginia law. He didn’t violate the law.” And you are deemed by Va Law and professional standing to not be making this statutory wrong by accident.
Almost entirely true. ” prohibit government officials from engaging in “official acts” in exchange for bribes.” is 18USC201 and only applies to federal offices or matters if I recall correctly.