Whose 'truth' will McDonnell jurors believe?

Bob McDonnell began last week — the fifth of the trial — on the witness stand under intense cross-examination from federal prosecutors. It was a confrontation the former governor said he had been preparing for “every day since you indicted me” in January.

With 27 hours of testimony behind him, a noticeably more relaxed McDonnell told members of the news media Thursday that he has faith in “the ability of a jury to find the truth.”

But which truth?

The jury heard closing arguments Friday that left a vast gulf between the government’s charges that McDonnell and his wife, Maureen, conspired to sell the “honest services” of his office and their defense that the former governor did not lend state help to a dietary supplement executive to promote his product.

McDonnell did not deny that he and his family accepted more than $177,000 in loans and gifts from Jonnie R. Williams Sr., who then was CEO of Star Scientific Inc. Williams wanted state help in selling a new, tobacco-derived supplement, Anatabloc.

“That is bribery. That is corruption, the real thing,” Assistant U.S. Attorney David V. Harbach II said in a two-hour closing argument Friday that sought to tie the former governor to evidence that the businessman wanted state favors in return for his generosity.

But Henry Asbill, McDonnell’s attorney, said the government had failed to prove a case that “never should have come to trial” because Williams “didn’t get anything” from McDonnell for the gifts and loans.

“You can’t find Bob guilty just for taking gifts,” Asbill said. “This is a bribery case, not an election.”

In the middle of that battlefield sits Maureen McDonnell. The former first lady’s attorney said she had become “an afterthought” whose only offense was clinging to the attentions of a wealthy businessman because her marriage was in shambles.

Jurors might consider her accepting lavish gifts from Williams to be “tacky” or inappropriate and her interest in his nutraceutical products “weird,” said William Burck, her attorney.

“Weird is not a crime,” Burck said.

A cautionary tale

However the trial ends, Virginia’s political culture may never be the same.

“Whatever the jury’s verdict, the trial itself has sent a powerful message to public officials, not just in Virginia but across the nation, that ethical lapses can have serious consequences,” said Larry J. Sabato, director of the Center for Politics at the University of Virginia.

A wild card in the jury’s deliberations is the testimony of Williams, a successful businessman whom one of McDonnell’s political aides called “sort of a snake-oil salesman” in testimony earlier in the trial.

Williams testified extensively for the prosecution under a blanket immunity agreement that spared him from facing criminal charges on potential securities violations.

“This is Jonnie’s greatest con,” said Asbill, adding that without Williams’ “falsehoods, they’d have nothing at all.”

Credibility contest

Charles E. “Chuck” James, a white-collar defense attorney at Williams Mullen, predicted that the outcome is “going to turn on Jonnie Williams’ testimony and whether or not he was deemed credible,” given his immunity deal.

The jury will weigh that against McDonnell’s testimony, James said, “and whether he is deemed credible or simply self-serving.”

The attack on Williams’ credibility could raise questions about McDonnell’s judgment, said Robert D. Holsworth, a policy consultant and former political science professor at Virginia Commonwealth University.

“The question that the jurors are going to have to decide is: How effectively did the defense explain the defendant’s reaction to Williams’ obvious corrupt intent?” Holsworth said.

McDonnell’s defense has been that he was unaware of Williams’ efforts and that the governor misjudged a man whom he considered a friend.

Federal prosecutors took pains to corroborate Williams’ testimony with evidence — emails, text messages, handwritten notes and schedules — and testimony from other witnesses.

“It was a very powerful connecting of the dots,” Holsworth said of Harbach’s closing argument.

“He was careful to say when he was relying on Jonnie Williams and when he was not,” he said.

Jeanine McDonnell Zubowsky, the oldest of the McDonnells’ five children, drew gasps when she testified Wednesday that she and her husband, Adam, had returned a $10,000 check Williams had given them as a wedding gift after they realized he was “a criminal.”

Zubowsky and her husband received the check in December 2012. The governor announced in July 2013, after the gifts became public, that the Zubowskys had returned the check.

In the government’s closing rebuttal Friday, Assistant U.S. Attorney Michael S. Dry pounced on the daughter’s remarks, agreeing that Williams is a criminal.

“He is, absolutely,” Dry said, “because he bribed the defendants.”

“You don’t have to like Mr. Williams,” the prosecutor said. “You shouldn’t have to like Mr. Williams. He bribed the governor of Virginia.”

Contrasting images

Prosecutors sought to use the former governor’s attributes against him. They introduced emails in which McDonnell the micromanager found time to weigh in on bar stools, bocce ball and bed bugs at the family’s Virginia Beach rental properties.

They contrasted that meticulousness with McDonnell’s self-portrait as a dupe who did not know Williams gave his wife a $50,000 check and a $20,000 shopping spree, or that the first lady sent a McDonnell aide a key message while she sat next to the governor in a car.

Prosecutors highlighted Bob and Maureen McDonnell’s own words in February 2012 emails about the prize Williams wanted most: state tobacco grants for research at Virginia’s two biggest medical schools of the health benefits of Anatabloc.

McDonnell said he didn’t know his wife had emailed his counselor and senior policy adviser, Jasen Eige, on Feb. 10, 2012, and directed him to contact Williams about grants to the Virginia Commonwealth University and University of Virginia medical schools.

“Gov wants to know why nothing has developed w studies after (Williams) gave $200,000” in seed grants to the universities, Maureen McDonnell wrote Eige, adding, “Gov wants to get this going w VCU MCV.”

Prosecutors used schedules and other evidence to show that the first lady was sitting next to the governor in an SUV when she emailed Eige.

“I didn’t know the email was being sent,” the former governor testified.

The government also focused on the six-minute gap between an email McDonnell sent to Williams about a loan to the real estate company the governor owns with his sister and an email McDonnell sent to Eige about “anatabloc issues at VCU and UVA.”

Eige responded quickly, “will do. We need to be careful with this issue.”

“He shuts it down,” Harbach said of Eige’s reply. The prosecutor argued that McDonnell’s staff’s attempts to prevent the governor from taking potentially inappropriate actions did not overshadow his intention to do so.

McDonnell, asked whether he should have told Eige that he was negotiating a $50,000 loan with Williams, replied, “No sir, I don’t talk about my personal finances with my subordinates.”

“We don’t make decisions based on money,” the former governor added.

Concealment?

The foundation of the prosecution’s case rests on whether the McDonnells intended to conspire with Williams and conceal their actions from their own family and staffs, as well as the public.

Asbill dismissed the government’s argument of concealment. “There was no bribery to conceal,” he said.

The defense insisted that McDonnell did not perform any official act to benefit Williams and his company other than what the governor would have done for any other Virginia business.

But prosecutors said the CEO clearly benefited when the McDonnells used the Executive Mansion to promote his product in August 2011 and shaped the guest list of a February 2012 health care reception at the mansion to include him and two dozen associates.

This is where the judge’s instructions to the jury could prove critical, Holsworth said.

“At the end of the day, the jury instructions are suggesting there doesn’t have to be an explicit agreement or an explicit quid pro quo,” he said. “The question is whether there was a corrupt bargain between Williams and McDonnell.”

Marital strife

Defense attorneys continued to insist that the McDonnells were incapable of conspiring with Williams, arguing that their marriage was in deep trouble because of the strains caused by the governor’s political life.

“They weren’t scheming. … They weren’t speaking,” Asbill said.

Prosecutors sought to combat the defense account of a fractured marriage. They introduced photos of the McDonnells walking hand in hand to a hearing in May.

“We wanted to support each other,” McDonnell testified Tuesday.

The portrait of family life that emerged in last week’s testimony was far different than McDonnell portrayed in his campaign for governor.

“McDonnell is reaping the whirlwind of the 2009 campaign because the campaign projected that the McDonnells were the ideal American family — and it turned out to be phony,” Sabato said.

Under cross-examination Monday, McDonnell agreed that his wife had lied to him about repurchasing Star Scientific stock in January 2012. Earlier, she had bought it with part of a $50,000 loan from Williams and then sold it before the end of the previous year. Prosecutors say she sold the shares in December 2011 so the governor would not have to disclose them on his annual statement of economic interests.

McDonnell also testified that he had once spoken to Zubowsky, his daughter, about marital problems with her mother.

“I just needed somebody to talk to,” he told Asbill under questioning.

Zubowsky elaborated in testimony Wednesday, saying that her father had confided, “I don’t know what I can do anymore. I can’t make her happy.”

Zubowsky recalled her mother’s frustration, loneliness and anger in the decades after McDonnell was elected to the House of Delegates in 1991 and embarked on a state political career that often kept him from home.

“I think she was depressed,” the daughter said.

There was little tenderness evident between Bob and Maureen McDonnell in last week’s testimony. Prosecutors introduced evidence to prove the couple had traveled extensively together. Defense attorneys sought to show that the two were seldom alone together and often fought when they were.

Burck said Maureen McDonnell had been called many names in the trial, but never a “criminal mastermind.”

“In the end, Maureen McDonnell isn’t even collateral damage — she’s less than that,” her lawyer said Friday. “She’s an afterthought.”

Dry went further in the prosecution’s rebuttal, concluding that while testimony about the marriage was “salacious and sad,” it ultimately is not relevant to the charges.

“Mr. McDonnell is willing to throw his wife under the bus, and she’s willing to let him to avoid criminal conviction,” the prosecutor said.

Other counts

Both Bob and Maureen McDonnell face charges beyond the allegations of political corruption. He is charged with two counts of fraud, and she is charged with one for not listing loans from Williams on two bank application.

McDonnell revised one of the applications on Feb. 18, 2013, to include the loans from Williams. That was three days after state investigators first interviewed Maureen McDonnell.

The defense said the governor always intended to revise what he considered a draft. Besides, his attorneys said, Williams’ loans weren’t to him personally and didn’t need to be disclosed.

Maureen McDonnell also faces a charge of obstruction of justice for allegedly trying to cover up gifts from Williams after she was first interviewed by investigators. The charge stems from a note she wrote Williams in which she claimed that she had always planned to return expensive clothing he bought for her. Her defense has been that she didn’t know she was being investigated and that her decision to return the clothing had nothing to do with the interview.

Holsworth said the defense really is asking the jury, “How can you say this gullible woman belongs in jail?”

A ‘tawdry’ tale

Sabato called testimony in the five-week trial “shocking, tawdry and embarrassing.”

“It’s hard not to feel some sympathy for the McDonnells, my God,” he said. “Having said that, you can’t come close to excusing what they did, regardless of the verdict.”

The closing arguments by attorneys for the government and the McDonnells all accomplished what they needed to do, said James, of Williams Mullen.

He said that because there is a long break for the Labor Day weekend, the victorious side “will be the one who made the points that four days later ring true.”