{"id":8463,"date":"2015-02-28T18:58:09","date_gmt":"2015-02-28T23:58:09","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=8463"},"modified":"2016-11-16T19:21:35","modified_gmt":"2016-11-17T00:21:35","slug":"condemn-dont-convict-for-graft","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/condemn-dont-convict-for-graft\/","title":{"rendered":"Condemn, Don’t Convict, for “Graft”"},"content":{"rendered":"

When news broke that Maureen McDonnell had been sentenced to a year and a day in prison for alleged crimes she committed alongside her husband, former Virginia Governor Bob McDonnell, the New York Times ran a perfunctory piece titled, “Former First Lady of Virginia is Sentenced to Prison for Graft<\/a>.” While I knew that the McDonnells had been fighting a very public prosecution for corruption-related charges, I had to turn to my friend Merriam Webster to understand this particular Times headline. Unfortunately, the definition I uncovered wasn’t terribly helpful in understanding how Mrs. McDonnell’s actions amounted to criminal activity, at least within the context of her case.<\/p>\n

Graft<\/a> (n.): The acquisition of gain (as money) in dishonest or questionable ways.<\/p>\n

Scanning Mrs. McDonnell’s grand jury indictment, there’s no shortage of “questionable” acquisitions of gain, from designer clothing and handbags to cash transactions, all originating from a financial backer of Governor McDonnell. As for Mrs. McDonnell\u2019s \u201cdishonesty,\u201d we know that she hid gifts and spending from her husband, so it\u2019s fair to characterize at least some of her gain as dishonest. We can scrutinize Mrs. McDonnell’s poor financial choices and question her transparent hunger for fancy things, but does our moral judgment really amount to a legal judgment of criminal culpability? Perhaps it should, but I don’t see how it does. At least not under the Hobbs Act and honest services wire fraud statutes that form the basis for Mrs. McDonnell’s convictions.<\/p>\n

It is a dangerous proposition to allow opprobrium to diminish the civil liberties of a fair trial and due process. The most significant charge against Mrs. McDonnell, based on media accounts<\/a> and court transcripts<\/a>, is that she was a bad political wife. Maybe she was, but it makes me terribly uncomfortable that such an accusation can lead to the public airing of one\u2019s dirty laundry and, consequently, jail time.<\/p>\n

When a jury exits a courtroom to deliberate, they can decide to acquit a defendant, even if the law contradicts such a decision. This practice is called jury nullification, and it is a legitimate tool for juries to protect defendants from unjust laws. Alternatively, the jury could decide to convict a person, even where no such basis exists in the law. Such decisions should lead to judicial reversal, so long as the machinery of our criminal justice system is working properly. Whether the woman on trial is an indigent charged with solicitation or a political spouse charged with corruption, the minimal procedural protections requiring a\u00a0conviction only for conduct that is criminal should not be forgotten.<\/p>\n

As a First Lady of the Commonwealth, Mrs. McDonnell received no salary and wielded no real power<\/a>. She did, however, assume great responsibility and pressures as an elected official’s spouse. Court records show how life in the Governor’s mansion took its toll on Mrs. McDonnell and her marriage. The cynic might even say that Governor McDonnell’s theory of innocence was the “my wife is a bitch” defense. It’s easy to scorn a public figure for difficulty coping with what amounts to problems of privilege. But our criticism of Mrs. McDonnell’s personal dealings shouldn\u2019t blind us to the plain fact that she dealt in the currency of ingratiation and access, both of which are legal tender in politics.<\/p>\n

With nothing concrete to offer as a Governor\u2019s wife, all that Mrs. McDonnell could have promised, hinted at, or coincidentally given her benefactor were \u201cingratiation and access.\u201d These are the magic words tucked away and labeled \u201cnot corruption\u201d in\u00a0Citizens United v. FEC<\/span>, 558 US 310, 360 (2010). And as McCutcheon v. FEC<\/span>, 134 S. Ct. 1434, 1441 (2014), clarifies, such ingratiation and access are beyond government regulation. Perhaps it is for that reason that the States have passed laws governing the giving of gifts to government employees. But since Virginia\u2019s gift laws don\u2019t reach Mrs. McDonnell\u2019s behavior, federal prosecutors had to rely on dated, confusing, and ambiguous statutes to pursue a \u201ctough on corruption\u201d political agenda.<\/p>\n

As the New York Times put it, Mrs. McDonnell was found guilty for “trading favors” in exchange for the loans and gifts of cash and designer goods. To be clear, neither the Hobbs Act nor the honest services statute prohibits the trading of anything for good will and networking. Whereas the Hobbs Act targets extortion, the honest services statute works to ensure fairness in government by, for example, prohibiting granting a contract or casting a vote in exchange for a donation.\u00a0Mrs. McDonnell was in no position to extort, nor did she have any power to grant contracts, cast votes, or do much else of consequence besides serve the social, ceremonial function our society demands of the political wife. In short, she did nothing wrong, as far as the law was concerned.<\/p>\n

If the American public wishes to shun Maureen McDonnell for lamenting that her dire financial situation left her tragically incapable of treating herself to\u00a0Oscar de la Renta dresses, so be it. But if the government wants to go after Mrs. McDonnell and punish for her behavior, it needs to pass a law. Like it or not, Maureen McDonnell\u2019s acquisition of money may be questionable or dishonest, but it isn\u2019t illegal.<\/p>\n","protected":false},"excerpt":{"rendered":"

When news broke that Maureen McDonnell had been sentenced to a year and a day in prison for alleged crimes 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