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McDonnell Trial Reviewed

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In closing statements of former Governor Bob McDonnell’s August trial, lead prosecutor Michael Dry made a remarkable statement. McDonnell had flat-out denied key testimony of star witness Jonnie R. Williams, a suspected con man under federal investigation who had agreed to testify in exchange for a generous immunity agreement. Dry acknowledged that jurors might suspect that Williams had lied. But then he argued, “Who cares?” The jury could “discount everything, every single word uttered by Mr. Williams,” he said, and it wouldn’t matter. There still remained a mountain of evidence to prove the government’s case that McDonnell and his wife had used their status to obtain $138,804 in gifts and loans from Williams.

“Who cares” if Mr. Williams lied? The jurors apparently did not; they found the governor guilty on all counts, his wife on nine. But Virginians should care. When Mr. and Mrs. McDonnell are sentenced for their convictions early next year, they may well be sentenced to jail time, and the amount of time will be determined in part by the number of counts for which they were convicted. If some of those convictions were obtained from tainted testimony, they will be punished excessively and unjustly.

Virginians also should care about the lengths to which a Democratic Attorney General’s office was willing to go to win a conviction against a popular Republican governor. Prosecutors put forth as a witness a man whose narrative evolved over some ten meetings with the FBI and federal prosecutors, whose story about a key encounter with McDonnell changed within the trial itself. Indeed, law enforcement officials had every reason to question his story themselves. If they won their convictions through tainted testimony, is that really the way Virginians want the rule of law to work?

Government’s key witness

Serial entrepreneur and Star Scientific Inc. founder Jonnie Williams had been fined in the 1980s by the Securities and Exchange Commission, and he remained on the federal government’s scam radar. At Star Scientific, he peddled the promise of developing a “safer cigarette.” When that futile quest collapsed, he claimed to have discovered a miracle compound, anatabine – as big as penicillin — that potentially could fight Alzheimer’s and other diseases linked to inflammation. But he faced a steep climb to gain acceptance. Virginia’s secretary of health and human services, among others, dismissed the product as “worthless.”

Unbeknownst to the public, the First Couple was struggling financially with crushing credit card debt and underwater real estate investments in Virginia Beach. Prosecutors argued that the McDonnells engaged in a conspiracy to trade the prestige and support of the Governor’s office for Williams’ gifts and loans. The McDonnells hosted a luncheon praising Anatabloc in August of 2011 at the Governor’s Mansion. The First Lady spoke at Star investor conferences across the country.  The Governor popped Anatabloc at official meetings and helped set up meetings with state government officials.

For all the documentation the feds had gathered, however, they lacked “smoking gun” proof of a quid pro quo.  McDonnell argued that he did no more for Star Scientific than he would for any promising Virginia company. Prosecutors needed Williams to provide evidence of a tacit conspiracy to trade favors for gifts.

The first time investigators interviewed him, Williams described the McDonnells as friends. He denied trying to buy influence with his loans. He praised the Governor’s integrity. But the government ratcheted up the pressure, probing into potential insider trading transaction involving Star Scientific stock. The second time he met with investigators, they granted him “use” immunity, which prevented his testimony from being used against him. Williams then said there was a “wink and a nod” agreement to exchange gifts and favors. In a meeting shortly before the trial, the government offered “transactional” immunity that protected him from other offenses, including the insider-trading probe. His story changed yet again. This time, he said, he was never friends with Maureen and Bob McDonnell. Their dealings were business transactions, and they knew they were exchanging gifts for favors.

Accordingly, prosecutors made the following keystone charge, upon which much of the rest of the case would hinge, in its indictment:

Before agreeing to provide the requested financial assistance to the defendants, JW [Jonnie Williams] spoke directly with ROBERT MCDONNELL about the $50,000 loan. In that conversation, ROBERT MCDONNELL explained the defendant’s financial difficulties. ROBERT MCDONNELL informed JW that the rental income from the defendants’ rental property in Virginia Beach was not covering the bills for those properties. JW agreed to provide the $50,000 loan with a two-year term at 5% interest. JW also informed ROBERT MCDONNELL that loan paperwork was not necessary.

Williams later admitted in court that the deal freed him “from worrying about going to jail.” Legal experts were hard pressed to remember other instances of prosecutors granting such broad immunities in a corruption case.

Shifting story

May 2, 2011, was a key date in the prosecution’s conspiracy timeline. The prosecution alleged and the defense did not dispute that Williams and Mrs. McDonnell met at the Governor’s Mansion. Mrs. McDonnell revealed the family’s credit-card and rental-property issues to Williams, and Williams agreed to give her a $50,000 personal loan and to cover $15,000 in catering costs for daughter Cailin’s upcoming nuptials.

The other key date was May 23, 2011, the day that Williams delivered the two checks. It happened to be his wedding anniversary, and he and his wife Celeste were planning to have lunch at the Jefferson Hotel. Williams dropped by the Governor’s Mansion on the way to deliver one check for the catering company and another made out to Mrs. McDonnell. Williams and his wife stayed about an hour and fifteen minutes, he testified at one point. “We went upstairs and had a salad.”

Why, the defense asked, did he make out the $50,000 check to Maureen McDonnell? Because, he testified, that’s to whom she said to make it out to.

Federal anti-corruption law applies to elected or appointed public officials. As First Lady, Mrs. McDonnell was neither elected nor appointed. She was a private citizen. While it was wildly inappropriate in the eyes of the public for her to offer Williams her services in exchange for the $65,000, it was not illegal. To demonstrate a conspiracy that involved McDonnell, prosecutors had to show that the Governor knew about the arrangement at the time.

Williams testified that he insisted upon speaking to McDonnell about handing over the money. “I needed to make sure the husband knew about it. … He’s the bread winner in the house, and … I’m not writing his wife any checks without him knowing about it.” The prosecution cited this “evidence” in closing argument to say, “What does this tell you about who the loan was really to?”

The indictment says the two men “spoke directly,” implying a face-to-face meeting between the two. But when asked by prosecution during the trial, Williams became evasive about when, or even if, such a meeting took place.

I recall that it was on the day that I came there or somewhere – I just don’t recall whether it was in person or whether I talked to him on the phone. … I called him and said that, you know, ‘I’ve met with Maureen. I understand the financial problems and I’m willing to help. I just wanted to make sure you knew about this.”

According to Williams, McDonnell thanked him and commented that the Virginia Beach properties were the main source of his family’s financial difficulties.

In testimony later in the trial, McDonnell insisted that no such meeting or conversation ever took place. Williams’ account was “absolutely false.” He said he did not find out about the loan until two weeks later.

During cross examination, William Burck, Mrs. McDonnell’s defense attorney, probed inconsistencies between what Williams had testified in the trial and what he had told the FBI back on July 2, 2013. The trial transcript records this exchange:

Burck: You told prosecutors that the Governor came over from his office using the tunnel between the Governor’s Office building and the [executive] mansion. This is right after you gave the check.

Williams: Yes

Burck: Do you remember telling them that?

Williams: I recall telling them that the Governor came over because I learned about that tunnel that comes over from the Patrick Henry Building to there. But I’m not sure if – I’m not 100 percent sure if that’s where I met with him and briefly with his wife and made sure about the loans or that I talked to him over the phone. I’m not 100 percent sure of that as I sit here. … I can just tell you that before I gave the Governor and his wife these checks, I made sure the Governor knew about it.

During the trial, Burck then asked Williams about different testimony he had given the FBI:

I may have said that – I was confused. Actually, I may have said that, then, yes. But later I learned, my memory was refreshed, and I’m not sure whether on that occasion, because clearly, the second one I did, but on the first one, I wanted to just make sure that he knew about this loan. And I don’t know if I did that on the phone or if I met with him … in person.

Williams’ testimony became even more problematic under cross-examination by McDonnell’s defense attorney. Henry Asbill bore in on Williams’ meeting with Mrs. McDonnell when he dropped off the checks.

Asbill: You ended up staying there longer than you wanted, is that right?

Williams: We had difficulty getting away.

Asbill: And Bob McDonnell was not present when you dropped off the checks, was he?

Williams: I just don’t remember. I have a problem with that part.

Asbill: Before those checks were cut, between the 2nd of May and the 23rd of May, you never talked to Bob McDonnell about those checks, did you?”

Williams: No. … All I can tell you is May the 23rd, I personally delivered those checks, left my wife in the car out front so I could go make sure the Governor know about those checks. And whether I met with him there briefly or whether I called him, I did that. That was my purpose of going to the Governor’s Mansion.

The prosecution offered no corroborating evidence of any kind. But the defense presented a May 28 email message from McDonnell to Williams: “Jonnie, Thanks so much for all your help with my family. Your very generous gift to Cailin was most appreciated.” The governor made no mention of the $50,000 check written to Mrs. McDonnell. Why would he thank Williams for the $15,000 wedding gift and not the larger $50,000 loan unless he didn’t know at that point about the loan? Perhaps there is an explanation for the omission, but the email creates reasonable doubt about Williams’ version of events.

Flunking the Smell Test

For most people, conversing with the Governor of the Commonwealth of Virginia about checks totaling $65,000 – gifts and loans which they hoped would grease the skids for forthcoming favors – would stand out in their mind. “I generally don’t have a problem with my memory,” Williams boasted at one point during his testimony. Yet, unlike his keen recollection of other events, this critical encounter got lost in the mists of time.

Did Williams meet McDonnell in person or talk on the phone? He couldn’t remember.

If he did meet with the Governor in person, did the meeting take place in the tunnel between the Patrick Henry building and the Governor’s Mansion, or in the mansion itself? He couldn’t say.

What did the governor say? Williams supplied only the vaguest details.

Did Mrs. Williams stay in the car during the meeting with Mrs. McDonnell or did she come upstairs with them for a salad? He gave conflicting accounts.

Did Williams meet with McDonnell before providing the $65,000, as stated in the indictment, at the

same time he handed over the checks to Maureen, or after? He had a problem “recollecting that part.”

Despite the full resources of the FBI and the Virginia State Police, the prosecution produced no corroborating evidence of any kind. It produced no record from the Governor’s Mansion’s log that Williams had met with the Governor. It produced no telephone exchanges, emails or text messages that hinted at a communication. It produced no witnesses. The case came down to McDonnell’s word versus Williams’ word.

To top it off, the little that Williams did say about the conversation did not plausibly mesh with the facts. Williams’ $50,000 check to Mrs. McDonnell did not go toward covering bills for the rental property. Mrs. McDonnell used $1,500 to pay bills. She used the rest to buy Star Scientific stock. Her action seems more consistent with the Governor’s story that he knew nothing of the loan until two weeks later — confirmed by his thank you note that failed to mention the loan — than it does with Williams’ story that McDonnell said he needed the money to help with his underwater real estate investment.

Williams had every reason to create a clever, hazy fabrication. He understood the weakness in the prosecution’s case. The Justice Department needed him to establish that McDonnell knew about his wife getting the $50,000 and giving his prior approval.

Why was Williams’ story so critical to the prosecution? Because the next solo, face-to-face meeting between the two men didn’t take place until March 2012, when Williams handed over two checks totaling $70,000 to help with the governor’s real estate investment — after the McDonnells had performed most of their favors, such as they were, for Star Scientific.  The prosecution linked that meeting to only one subsequent favor performed by the governor: initiating a meeting with the Secretary of Administration to discuss how Anatabloc might help reduce costs of the Virginia state employee health plan. That meeting, incidentally, led to nothing.

For all practical purposes, McDonnell stopped doing Star Scientific any favors after setting up the March 2012 meeting. Without William’s testimony about the May 23rd meeting, there was nothing to link the parade of favors – setting up meetings with government officials, attending Star Scientific events, the kind of things that governors routinely did – with Williams’ gifts and loans.

Who Cares?

The government’s lead prosecutor was wrong to say, “Who cares” if Williams was lying?

Take away Williams’ assertion that he talked to Governor McDonnell on May 23rd, and the government is left with a purely circumstantial case so weak that prosecutors had offered before the trial to allow McDonnell to plead guilty to a single minor felony charge – a deal that McDonnell rejected.  Contrary to prosecutor Dry’s assertion that the jury could “discount everything, every single word uttered by Mr. Williams” and it wouldn’t matter, Williams’ testimony was central to the case. If Williams’ testimony was inessential, why then did the government grant the businessman blanket immunity, even for a securities investigation not related to the case?

The jury bought the prosecutors’ argument. But the government’s story, not McDonnell’s, is the one that wilts under scrutiny.

(This article first ran in Bacon’s Rebellion on October 27, 2014)


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