Does Supreme Court's Overturning Former Virginia Gov. McDonnell Graft Conviction Decriminalize Corruption?

Posted July 6, 2016

MP3 Interview with Scott Swenson, vice president for Communications with Common Cause, conducted by Scott Harris


In a unanimous decision handed down on June 27, the U.S. Supreme Court overturned the corruption conviction of former Virginia Gov. Robert F. McDonnell. In September 2014, a jury unanimously convicted Gov. McDonnell and his wife Maureen of public corruption, finding that the couple had used the governor’s office to assist Jonnie R. Williams Sr., a wealthy dietary supplement company executive, advance his business interests. In exchange, Williams gave the McDonnells $177,000 in loans and gifts including a Rolex watch, vacations, partial payments for a daughter’s wedding reception and $20,000 in designer clothing and accessories.

The Supreme Court decision to vacate the conviction means that the former Republican governor, who was once mentioned as a possible GOP presidential candidate, will not have to serve a two-year sentence, and his wife will avoid serving her one year and-a-day prison term. In rendering their opinion, the justices stated that instructions to the jury in this case on what constitutes “official acts” was too broad. The high court remanded the case back to the U.S. Court of Appeals for the 4th Circuit to determine if there is sufficient evidence to justify a new trial.

Between The Lines’ Scott Harris spoke with Scott Swenson, vice president for communications with Common Cause. Here, he discusses the overturning of the McDonnell conviction, and the dangerous precedent he believes it sets for making it more difficult to prosecute officeholders who sell political access and influence to the highest bidder. [Rush transcript]

SCOTT SWENSON: It is very clear this is not politics as usual by any stretch of the imagination. There's ample evidence that Gov. (Bob) McDonnell took gifts and loans provided by his friend Mr. Williams, accepted vacations, a Rolex watch, $20,000 shopping spree, $15,000 in catering expenses for their daughter's wedding, tens of thousands of dollars in private loans in exchange for Gov. McDonnell promoting Mr. Williams' products and using privileges of power that come with the office of governor of any state, in this case, Virginia to host events, to give the state's official seal of approval to this product and to this business.

In one instance, McDonnell emailed Williams asking about a $50,000 loan, and six minutes later, sent another email to a staffer requesting an update on the scientific research surrounding Williams' product. So you see a very clear line between the money coming in or the request for the money and the governor's interest in this case.

BETWEEN THE LINES: Tell our listeners about what the Supreme Court unanimous decision says that throughout the corruption conviction against Bob McDonnell, what was the rationale for the Supreme Court in making this ruling?

SCOTT SWENSON: It's a little hard to discern. They have been very clear that the quid pro quo corruption in every other case is usually what they cite. This is as clear a case of pay-to-play, quid pro quo corruption as you could find, and yet they managed to weasel out of this. It's clear we can't rely on federal laws any longer to protect and preserve our democracy. But we're not left empty handed. We as organizers and people need to start to work on small donor campaign finance reform and gift campaign finance laws at the local and state level so that we can demand consistency in our jurisprudence law for the court and that we can rid the country of pay-to-play politics.

The president is sitting on an executive order that would deal with this directly on a federal level. In Virginia, Gov. McDonnell, other governors in other states have very specific disclosure that rule against pay-to-play politics or shine a light on them, so the prophylactic prevents people from wanting to do, take advantage of the system. Virginia just doesn't have that in place. And so, the people of Virginia have to get those laws in place, other states, obviously should be doing the same thing, because right now we've got a court that's playing politics, and if you get one decision on one day that looks like it's going in one direction and the very next day you get this decision, which says "quid quo pro, we don't see that here," that is a court that is out of balance and out of touch with where the American people are, and we've got to have stricter campaign finance laws to make sure we can correct for that.

BETWEEN THE LINES: What precedent does this Supreme Court case send to the rest of the country? Many critics have said this hands-down going to make it more difficult to prove corruption charges against elected officials who take gifts, who accept remuneration for favors given.

SCOTT SWENSON: Absolutely, there is no doubt about it. Unless and until this ruling is corrected, in terms of the remand to the lower court and vacated by the high court, and get a different decision from the lower court that can be affirmed, this is sending a signal that pay-to-play politics is alive and well. There are very, very few cases of actual sort of money exchanging hands from one to the other, as we've sometimes seen in grainy video shots by undercover cameras or what-not in the ABSCAM trials or other things like that. That sort of corruption, that sort of "Here's a billion dollars that I'm going to give you in a briefcase now you'll continue this favor" – that is just is pretty far afield. So what happens in Washington, what happens like in the McDonnell case, is legal. And it's only different by inches from someone handing over a bag of cash, and say, "Oh, would you do this favor for me, or for my business." In which case, no votes, it's still a way of using the official apparatus of the state of Virginia and its scientific and business acumen and authority to lend credence and credibility to this gentleman's product and help them make lots of money. And that is an exchange of money and goods, or money and services – however you want to frame it – that sure seems like it opens the door now with this particular ruling to more rampant pay-to-play politics in the country. The most important thing for your listeners to know tonight is that all is not lost. People are working very hard, smart, thoughtful lawyers, across this country in think tanks and activists around this country are working very hard to put together reform measures that will ensure democracy remains of, by and for the people and doesn't get sold out to the highest bidder.

We're in a very dark moment of our history right now. There is no question about that.

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