Bob and Maureen McDonnell were found guilty today — Bob of 11 counts, Maureen of 9. Sentencing will come on January 6, 2015. See this list in the Washington Post going count-by-count. So what comes next?
- The defense will file post trial motions to set aside the verdicts, re-arguing the essential objections that they had made along the way. It is not likely that the motions will be successful, but sometimes judges allow cases to go to the jury rather than throw them out first. Sounds nonsensical? Here’s why. Suppose the defense has a strong argument that a charge should be dismissed as a matter of law, but the judge isn’t sure because it involves a new or different theory of law. He might allow the case to go to the jury, thinking that maybe the jury will throw the case out, which would end the matter for good. And if the jury DOESN’T throw the case out, the judge can always say, after the fact, “You know, I’ve thought about it some more, and I am going to reverse my decision and throw out the verdict.” That decision is appealable by the government, so it is thought of as a much less arrogant way to do it. “After all,” the judge might think, “it’s possible that I could be wrong.” So the defense would be hoping that maybe the judge might have been thinking along these lines.
- The McDonnells will be sentenced. Sentencing guidelines suggest a sentence of 9 to 11 years,, as I have posted before.
- They will appeal to the Fourth Circuit Court of Appeals, which sits just a few blocks away in downtown Richmond. They will probably be allowed to remain on bond pending appeal; Congressman William Jefferson, convicted of public corruption charges in 2010, was allowed to remain on bond until the 4th Circuit decision in 2012.
- The case will likely be appealed further to the U.S. Supreme Court, and would probably be allowed to remain on bond, though it is not a given.
The only appeal issues that I see come down to one basic question — was this even a bribery case at all? Did Bob McDonnell take any “official action”? See my earlier post on this point for the detailed discussion of the issue.
This issue is well set up for appeal, as it pits the Supreme 2012 Court’s 1999 decision in United States v. Sun-Diamond Growers of Cal., 526 U.S. 398 (1999) against the Fourth Circuit’s decision in United States v. Jefferson, 674 F.3d 332 (4th Cir. 2012).
Sun-Diamond Growers was a case in which the group that represents almond growers “bought” access to Agriculture Secretary Mike Espy with tickets to the Super Bowl and the U.S. Tennis Open. The Supreme Court said that just buying access isn’t a crime. There has to be some specific action or governmental decision that is being “bought.” The McDonnells have clearly thought of this case as like Sun-Diamond Growers. Jefferson was a case in which Congressman William Jefferson was convicted for receiving $100,000 for saying that he would use his influence to persuade government officials to act on behalf of a company that wanted to do business in Africa. Jefferson had argued that that wasn’t the job of a Congressman, so he couldn’t be convicted of an “official action” in return for the money. The jury disagreed, and the Fourth Circuit affirmed his conviction. The United States clearly thought that this case was like Jefferson, with money changing hands.
This is a legitimate appeal issue, if Bob McDonnell wins on that issue, he wins completely — he was acquitted of all other charges.
