Former Virginia Governor Robert F. McDonnell takes his historic corruption case to a higher court Tuesday, with a mission of securing total vindication or a new trial.
Although the fight will be brief, with each side only allowed 30 minutes before three new judges, the battle could turn the tide of the drama that has divided Virginia.
The McDonnell defense team and federal prosecutors will meet inside Richmond’s Federal Court of Appeals, across the street from where McDonnell served as governor in Virginia’s iconic Capitol building.
The stakes – whether or not McDonnell serves two years in prison, creating a precedent that could petrify politicians, and cast a pall over McDonnell’s four years as governor.
Beginning at 9:30 a.m. the defense will argue first and foremost that the former governor never performed any “official acts,” for Virginia businessman Jonnie Williams.
McDonnell is accused of accepting $177,000 in gifts and loans from the Star Scientific CEO, in exchange for using the prestige of the governor’s office to promote William’s dietary supplement, Anatabloc.
“None of [McDonnell’s] acts exercised government power, pushed others to exercise government power, promised to exercise government power, or took action on any specific matters pending before him,” defense lawyers argue in their appeal brief.
The defense maintains that arranging meetings and providing access to the Executive Mansion for Anatabloc’s product launch promoted Virginia business, similar to courtesies politicians extend every day.
But the government doesn’t buy it.
Prosecutors say the actions happened days or moments after McDonnell received loans from Williams, money used to keep the governor’s family finances afloat.
“Less than two weeks after receiving the $50,000 loan, [McDonnell] met with a cabinet secretary who had authority to help decide what drugs would be covered in the state employee health plan, pulled Anatabloc out of his pocket, told the cabinet secretary ‘it would be good for state employees,’ and ‘asked’ the cabinet secretary to meet with Star,” prosecutors write.
Government lawyers also allege McDonnell directed his actions toward subordinate state employees within the branch of government he controlled. Prosecutors say an aim of the actions was to persuade researchers at Virginia Commonwealth University and the University of Virginia to study Williams’ product.
“Less than ninety minutes after driving Williams’s Ferrari home from a Williams sponsored vacation, [McDonnell] ordered a subordinate to attend a meeting that was, as the defendant put it, “on the Star Scientific anatablock [sic] trials planned in va at vcu and uva.”
The focus of Tuesday’s fight will then turn towards the jurors.
Juror Kathleen Carmody speaking with Mike Valerio after verdict in the McDonnell Case
McDonnell’s team will say the 12 men and women were not screened well enough before the trial. Defense lawyers contend McDonnell’s counsel wanted to question jurors individually on whether media coverage clouded their judgements.
The court, “refused to include any question, despite both parties requesting it, asking whether prospective jurors had formed an opinion [on the case],” defense lawyers write.
The government maintains pre-trial screening was thorough, after using a 99-item questionnaire asking numerous questions about exposure to media coverage.
The third major point will focus on whether the appeals court should vacate McDonnell’s convictions because the lower court did not sever his trial from his wife’s.
Former Virginia First Lady Maureen McDonnell revealed in filings unsealed this year she would have testified on her husband’s behalf, but only if their trials were separate.
Mrs. McDonnell intended to testify that she deceived her husband and hid her dealings with Williams, testimony which may have harmed her credibility in the joint trial as she faced an obstruction of justice charge.
A transcript of the former first lady’s testimony could then be used against her in her own separate trial, but her defense lawyer wrote the impact of such a scenario would be less severe than if jurors heard from the first lady on the stand.
Prosecutors opposed splitting the trials because the defense asked the court to review its arguments without prosecutors seeing them, preventing the government from responding meaningfully.
Looking forward, the losing side may ask the full appeals court, rather than a three-judge panel, to hear the case after a decision is reached by September.
The losing side also has the option to appeal directly to the U.S. Supreme Court. However, with the justices selecting so few issues to review, the odds of cases granted certiorari are typically low.
A date to hear Mrs. McDonnell's appeal has not yet been set.