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Trial comes down to Bob McDonnell’s conduct

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McDonnell trial

Former Virginia Governor Bob McDonnel prepares to enter the U.S. District Courthouse in Richmond, Va. Thursday, July 10, 2014 for a hearing related to his upcoming trial later in the month.

Former Gov. Bob McDonnell will have to answer for his own conduct, not his wife’s, when their trial on corruption charges begins Monday in federal court in Richmond.

The former governor has been overshadowed at times by his wife, Maureen, the former first lady whose showy shopping sprees and close relationship with dietary supplement mogul Jonnie R. Williams Sr. set the stage for the impending courtroom drama.

But the key to the trial’s outcome is likely to be McDonnell himself, as his defense seeks to show he acted in his official capacity in the state’s interests, not his own, in promoting a product of a Virginia company.

“The prosecution needs to show that the former governor was an active participant in the scheme, even if he was not as involved as his wife,” said Jeffrey Bellin, associate professor at the College of William and Mary Law School.

The burden of proof will rest on the U.S. Department of Justice to prove that McDonnell, as the 71st governor of Virginia, crossed the line from helping a supporter and his business to accepting bribes for state favors, as alleged in a 14-count indictment filed against the former governor and his wife Jan. 21.

RELATED: Read past coverage of the McDonnells' gift scandal

SCHAPIRO: McDonnell legacy damaged before giftgate

Prosecutors are relying on a federal criminal statute that the U.S. Supreme Court has challenged as unreasonably vague, and a prosecutorial strategy that one legal expert described as “venturesome.”

“I think it’s an aggressive prosecution, on facts that are not clearly distinguishable from everyday politics,” said John C. Jeffries Jr., a professor and former dean of the University of Virginia School of Law.

“That’s not to say the governor’s conduct wasn’t stupid or sleazy — I think that’s clear,” Jeffries said, “but it’s not clear to me it was illegal.”

The best explanation for what McDonnell did or in some cases failed to do may have to come from him.

Whether the former governor will choose to testify on his behalf is unclear, but one prominent defense attorney thinks it’s likely in a defense strategy that will base much of its case on McDonnell’s character.

“In this case, the decision about testifying is huge,” said Kelly B. Kramer, a white-collar defense lawyer at Mayer Brown, based in Washington.

“If he takes the stand, almost everything that came before in the trial is almost irrelevant,” Kramer said.

Kramer represented former U.S. Rep. Rick Renzi, an Arizona Republican who was sentenced to three years in prison after being convicted of 17 of 32 criminal charges against him, primarily involving a land swap that he said benefited the interests of the state and prosecutors said ultimately benefited him.

Renzi, who has appealed the conviction, did not testify in his trial, but Kramer said prosecutors based their case in part on the same “honest services” wire fraud statute that the Justice Department is relying on in the case against the McDonnells.

One of the prosecutors in the Renzi case was David V. Harbach II, deputy chief of the Justice Department’s Public Integrity Section and one of the government’s lead lawyers in the McDonnell case.

“They’re going to make the same kinds of arguments,” Kramer predicted.

The case against McDonnell, outlined in the 43-page indictment, asserts that the then-governor and his wife conspired to enrich themselves with “payments, loans, gifts and other things of value” from Williams.

In exchange, McDonnell and his office would perform “official actions on an as-needed basis” to promote the Anatabloc dietary supplement produced by Williams’ company, Star Scientific, which was seeking legitimacy from state-sponsored research of the product’s purported health benefits.

Authorities say the “scheme,” as the indictment terms it, occurred from April 2011 to March 2013, but Williams’ efforts to get the attention of McDonnell and high state officials began in 2010, the governor’s first year in office.

When Williams allowed McDonnell to use his corporate jet for a political trip to California in October 2010, the businessman briefed the governor on the benefits of Anatabloc and the need for state assistance in studies to prove them, the indictment says. McDonnell told Williams he would put him in touch with Health and Human Resources Secretary Bill Hazel.

A month later, Williams met with Hazel in the secretary’s office and offered to fly him to Florida to visit an institute with financial ties to Star that was studying anatabine, the primary compound in Anatabloc. Hazel later declined the offer.

According to the indictment, McDonnell also spoke publicly on behalf of another Star product, a smoking suppressant called CigRx, at a seminar dinner at The Jefferson Hotel in Richmond in February 2011. The governor’s office subsequently approved a request by Star to post pictures of McDonnell speaking at the event on Facebook and Twitter.

But the indictment says the alleged scheme began to take shape that April, when Maureen McDonnell asked Williams to take her on a shopping spree in New York on his tab. The first lady said she would make sure Williams was seated next to the governor at a political event there.

The next month, Maureen McDonnell told Williams the family had severe financial problems and asked him for a $50,000 loan, while offering to help his company, the indictment alleges. She also asked him for financial help in paying for the catering of her daughter’s wedding the next month at the Executive Mansion — a $15,000 wedding gift that piqued investigators’ interest when the mansion’s chef disclosed it to authorities.

Williams’help ultimately included $165,000 in gifts and loans to the McDonnell family. The question at issue in the trial is whether McDonnell did anything in his official capacity to help Williams and his company in return.

“It’s the nature of the acts that the governor performed that I think will be key to the case,” said Jeffries, of U.Va.

In one instance, McDonnell directly asked Hazel to have someone meet with Williams and the first lady at the mansion to discuss scientific studies of Anatabloc. The governor made the request the day he and his family returned from a trip to Williams’ vacation home at Smith Mountain Lake that included McDonnell’s use of the executive’s Ferrari.

Hazel sent a senior policy adviser to the meeting, but nothing came of it. Nor did anything come of suggestions by Williams and his consultants that state employees could test the benefits of the supplement. Williams envisioned making the supplement available to state employees through the list of drugs paid for by workers’ health insurance.

A Star salesman tried to interest Sara Redding Wilson, director of human resource management for state government, and offered to arrange a meeting between her and Williams. She said no to both requests.

Still, according to the indictment, McDonnell pulled a bottle of Anatabloc from his pocket during a meeting with then-Secretary of Administration Lisa Hicks-Thomas in March 2012 and extolled its benefits. The indictment did not say whether Wilson attended the meeting, but she confirmed a similar account to the Richmond Times-Dispatch.

The governor’s staff tried to limit his role in a luncheon meeting at the Executive Mansion in August 2011 to announce grants from Star to researchers at the U.Va. and Virginia Commonwealth University health systems to study Anatabloc, but McDonnell spoke at the event.

Perhaps the biggest question is what, if anything, McDonnell did to get U.Va. and VCU to apply for research grants from the Tobacco Indemnification and Community Revitalization Commission, an independent state panel with a big endowment, to study the health benefits of Anatabloc.

In February 2012, Maureen McDonnell raised concerns with the governor and his counselor and senior policy adviser, Jasen Eige, over the universities’ continued delay in applying for the grants. (The universities never applied.)

One late night a week later, Bob McDonnell sent an email to Williams about arrangements for the transfer of Star stock to a brokerage account for the McDonnells to fund MoBo Real Estate Partners. The governor owns a stake in the corporation, associated with Virginia Beach rental properties he purchased with his wife and sister, both named Maureen. (Ultimately, Williams lent money instead of stock.)

Six minutes later, McDonnell sent another email to Eige that said, “Pls see me about anatabloc issues at VCU and UVA.” Eige responded quickly with caution. “We need to be careful with this issue,” he told the governor.

In the end, McDonnell did not help Williams get the research grants he wanted, just as Hazel and Wilson did not do anything to promote Anatabloc. But the indictment alleges that the governor’s actions deprived the public of his honest services under the wire fraud statute.

“The ‘honest services’ statute does not require the ultimate goal of the agreement to be successful, so the fact that the efforts may not have worked out as intended is not a legal problem for the prosecution,” said Bellin, of William and Mary.

The evidence is circumstantial, Bellin and other legal experts say, but that does not mean it will not be compelling to a jury.

“The jury has to find beyond a reasonable doubt that there was an agreement to trade the public office for things of value,” said Kramer, of Mayer Brown. “That’s the fundamental thing the government has to prove in this case.”

That might not be easy in a political system that routinely trades access to officials for campaign contributions and other gifts, said U.Va.’s Jeffries.

“Politicians do that sort of thing for money every day.”

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