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How Prosecutors Win Even When They Lose

Bob McDonnell at a lectern with a teleprompter, delivering the State of the Commonwealth address in 2013
Then-Virginia Gov. Bob McDonnell in 2013. Photo by Shelby Mertens.

Do you think justice was served when the Supreme Court threw out the corruption conviction of former Virginia Gov. Bob McDonnell because prosecutors stretched the law past the breaking point?

Before you answer, consider this: McDonnell was one of at least three prominent Republicans who were under investigation or threat of prosecution at the time he was convicted, meaning in the first years of President Obama’s second term. Prosecutors in Travis County, a rare Democratic bastion in deep-red Texas, indicted then-Gov. Rick Perry on charges that Texas courts dismissed earlier this year. And Wisconsin Gov. Scott Walker turned back attempts by Democratic prosecutors to show that his campaign staffs illegally coordinated with third-party groups to defeat a recall campaign.

Walker and Perry both ran short-lived campaigns for president this year. McDonnell, who was a rising GOP star in an important swing state, never got the chance to run because of his conviction. The case ultimately rested on nothing more than McDonnell extending routine courtesies to a businessman who was a personal friend and who had provided expensive gifts to the governor and his wife. (Maureen McDonnell was also convicted and also appealed; it is widely expected that her charges will be thrown out, considering the Court’s decision in her husband’s case.)

Chief Justice John Roberts, writing for a unanimous court, noted that McDonnell had taken no official action on behalf of his generous friend, and that while the relationship might have been distasteful to some observers, it was not illegal. “[The Court’s] concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns,” Roberts wrote. “It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute.”

In other words, prosecutors who want to convict an official of bribery must demonstrate that he or she actually participated in bribery as the law defines it.

As Roberts also noted, the case was based on charges that threatened the normal workings of representative government. Had the government succeeded, the precedent could threaten such normal political activities as constituents making campaign contributions to a preferred candidate or making a modest gesture of entertainment to a friend who happens to be an officeholder. Defining almost everything as an “official act” would grind a politician’s normal activities to a screeching halt.

While McDonnell could technically be retried, the Supreme Court’s decision means the case is effectively over. Given the weakness of the government’s case against him, McDonnell’s win essentially puts the matter to rest legally, though the damage to his reputation will probably continue to trouble him for years to come.

The Court made the right call, but if you think prosecutors are humiliated or deterred by such reversals, think again. I doubt anyone in the Obama Justice Department is going to lose a minute’s sleep over the fact that McDonnell will not serve his original two-year sentence, and likely will not go to jail at all. McDonnell’s chances of running to succeed Obama, or of galvanizing his state against this year’s Democratic nominee, were still effectively ruined – and that was most likely the biggest motivation for bringing him to trial for simply behaving like the politician he was. Similarly, Perry and Walker had to devote time and resources to their legal defense that could have been deployed to make them better candidates. I doubt it would have made a difference, but prosecutors had nothing to lose by making their targets’ lives difficult.

This is the real point. Prosecutors have nothing to lose when they bring bad cases, except the case itself, and the outcome of the case isn’t what really matters much of the time. Until we start getting the same accountability from law enforcers that they demand from everyone except themselves, we will see too many cases in which prosecutors feel free to wreck someone’s life because they stand to win even if they lose.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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