Lawyers for former Gov. Bob McDonnell and his wife, Maureen, will urge a federal judge Monday to dismiss corruption charges against them, in a hearing that will also feature crucial arguments on their request to separate their trials.
The exchange before U.S. District Judge James R. Spencer over splitting the McDonnells’ trials is pivotal.
“The motion to sever is critically important to the governor’s defense as it shapes his trial strategy,” said Charles E. “Chuck” James Jr., a former federal prosecutor and chief deputy Virginia attorney general, who is now a partner at the Williams Mullen law firm.
“For the government, the stakes are much lower and more focused on whether it has to repeat portions of its case in a second proceeding,” James added.
“The reality is that Mr. McDonnell’s best chance at an acquittal flows from a trial at which Mrs. McDonnell is not seated next to him as a co-defendant.”
The dismissal motion is just one of several legal issues that Spencer will consider during the hearing in U.S. District Court in Richmond, where the McDonnells are scheduled to stand trial July 28.
Dismissal motions are legal-procedure long shots and are rarely granted in complex criminal matters. But rulings on additional motions to be argued during Monday’s hearing will play a critical role in shaping defense strategy in the weeks leading to trial.
Chief among them is the motion by defense lawyers to sever the cases, allowing Bob and Maureen McDonnell to be tried separately. Spencer this month denied a motion from McDonnell’s team requesting that he put off a decision on severance until two weeks before trial.
Defense lawyers argue that prosecuting Bob and Maureen McDonnell together would “severely constrain” the former governor’s ability to introduce “relevant, admissible and exculpatory evidence at trial.”
Maureen McDonnell is willing to testify on her husband’s behalf, but does not intend to testify in her own defense, according to the governor’s legal team.
But in a joint trial, Maureen McDonnell would invoke a marital communications privilege if the former governor takes the stand in his defense and attempts to testify about confidential conversations he had with his wife — conversations that the defense says would dispel the government’s charge that the couple conspired to use public office to assist Williams.
Federal prosecutors contend that the McDonnells “simply have not demonstrated that they will be unable to obtain a fair trial” unless the cases are severed.
McDonnell and his wife face a 14-count indictment stemming, in part, from more than $165,000 in gifts, loans and payments they accepted from Jonnie R. Williams Sr., then-CEO of Henrico County-based Star Scientific, a former tobacco company-turned dietary supplement purveyor.
The McDonnells have pleaded not guilty to all charges.
Prosecutors say the former first couple used Bob McDonnell’s position as governor of Virginia “to enrich the defendants and their family members by soliciting and obtaining payments, loans, gifts and other things of value” from Williams and his company.
In exchange, prosecutors charge the McDonnells with “performing official actions on an as-needed basis” to help the company obtain research grants and promote its dietary supplement, Anatabloc.
The McDonnells’ lawyers have countered that the political-corruption allegations in the indictment do not meet the definition of an “official act” under federal bribery laws.
In one of a series of briefs filed in the case, they argued that the charges have been based on “an unprecedented interpretation of federal law that would, if adopted by this court, criminalize many basic practices of democratic politics.”
Considering the substantial publicity surrounding the case, McDonnell’s legal team also wants an expanded jury selection process. It would require prospective jurors to fill out a lengthy questionnaire two weeks before the trial. And if the case is not severed, lawyers want each defendant to get 10 strikes of potential jurors, compared with the six strikes afforded federal prosecutors.
The prosecution and defense agree that jurors should be able to take notes during the complex trial, which is expected to last five to six weeks. Prosecutors have deferred to the court on the issue of questionnaires and whether prospective jurors should have to fill them out at the courthouse.
But they oppose giving the defense additional strikes to disqualify jurors, saying the defendants should be granted the normal 10 strikes collectively.
“As a general matter, the government considers Mr. and Mrs. McDonnell to be equal to other defendants who appear before the court; their treatment should be no better and no worse,” prosecutors have stated in response to the McDonnell motion.
Prosecutors also oppose attempts by the McDonnells to expunge from the indictment references to purchases and sell-offs of Star Scientific stock by Maureen McDonnell, arguing they constitute evidence of an attempt to mask the first couple’s relationship with Williams and his company.
Losing motions to dismiss the corruption counts, to sever the trials, to trim the indictment and to expand the number of strikes during jury selection would compel the defense to transition from efforts to control the field of play, to designing the courtroom plays they would need to make to win acquittals.
James said that entails “putting the United States to its burden of proving each element, of each charge, beyond a reasonable doubt.”
Such a defense has its price — roughly $1 million, according to McDonnell supporters who are behind the “Restoration Fund” set up help the former governor cover the costs of the trial.
Former Republican presidential nominee Mitt Romney gave $10,000 to the fund, which raised $149,000 in the first quarter, according to the Virginia Public Access Project, a nonpartisan tracker of money in state politics.
McDonnell has also been doing his part to make ends meet, taking on a teaching job at Liberty University in Lynchburg at an undisclosed salary.
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