Guest Host: Todd Kliman

The trial of Virginia’s former governor Bob McDonnell and his wife Maureen on corruption charges got underway in Richmond this week, with the defense strategy taking a personal approach. The former first lady’s defense team aimed to dispel conspiracy charges with details of a rocky marriage and her “crush” on the businessman who gave the couple more than $160,000 in cash and gifts. We discuss the legal issues at stake, and how the tell-all defense strategy is likely to play with the jury.

Guests

  • Michael Pope Northern Virginia reporter, WAMU 88.5; political reporter, Connection Newspapers; Author, "Hidden History of Alexandria, D.C." (The History Press)
  • Michael Levy Partner, Paul Hastings law firm

Transcript

  • 12:06:41

    MR. TODD KLIMANFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. I'm Todd Kliman sitting in for Kojo. Coming up later in the broadcast, zoos play a key role in protecting endangered animals. But many of those institutions are themselves struggling to survive. We speak to the head of Baltimore's Maryland Zoo. But first, the trial of Virginia's former governor Bob McDonnell and his wife Maureen got underway this week and things got personal.

  • 12:07:17

    MR. TODD KLIMANWith the defense offering details about the couple's troubled marriage, the McDonnells are being tried on public corruption charges in relation to accepting more than $165,000 in gifts and cash from Virginia businessman, Jonnie Williams. Joining us to discuss the ongoing saga, Michael Pope. He is WAMU's northern Virginia reporter. Thank you for joining us, Michael.

  • 12:07:37

    MR. MICHAEL POPEGood to be here. Thank you.

  • 12:07:39

    KLIMANAnd Michael Levy, who is a partner at the law firm, Paul Hastings. I want to start with you, Michael Pope. You were in Richmond this week for the start of the trial. Set the scene for us and tell us a little bit about what it felt like and what the opening statements were.

  • 12:07:54

    POPEIt was high drama. A lot -- in fact, lots of moments of high drama. So setting the scene here, the federal courthouse is only a couple blocks from the Capitol Building and the Governor's Mansion, where the McDonnells once lived. And so it's sort of right there in the seat of power. This is on the seventh floor of the courthouse, which is the top floor. And the courtroom was packed with -- I was seeing mainly media types there. I'm sure there were lots of lawyers there that came sort of as onlookers as well. And they gave the opening statements.

  • 12:08:32

    POPEThe prosecutor's opening statement would have been a moment of high drama if we hadn't known about all these things for months in advance. I mean, they laid out the timeline in terms of, you know, this gift was given on this particular date, and then the official action took place, you know, the next day or the next couple of days. Then this other gift was given, and then the other official action took place. And so that kind of was low drama because we knew about all those things from the court filings. When it really became high drama was when the opening statements came from Maureen McDonnell's lawyer and Bob McDonnell's lawyer.

  • 12:09:11

    POPEBob McDonnell's lawyer -- who is himself an aspiring politician, he ran for attorney general several years ago -- laid out the case for McDonnell, that he had done nothing wrong. That it's the governor's job to do, you know, economic, you know, promote Virginia businesses. And he played two videos during the opening statements, which was -- seemed kind of unusual to watch -- be watching videos during opening statements. But it was for a brewery in Richmond and kind of an IT company in Martinsburg. And the theme there was, the governor's job is to promote Virginia businesses, right?

  • 12:09:54

    POPESo there was nothing wrong with the governor promoting Star Scientific. That was the governor's opening. When the fireworks really started going off was when Maureen McDonnell's lawyer gave the opening statement and outlined the "crush" defense, right, which is that Maureen McDonnell had a crush on Jonnie Williams, the head of Star Scientific. And that's when things got really complicated. It became kind of a love triangle, right? So she's interested in Jonnie Williams. Jonnie Williams is interested in the governor. And the governor apparently is interested in the Rolex watch and the Ferrari and all these things.

  • 12:10:28

    KLIMANYeah, it went from the tawdry to the salacious pretty quickly. Nobody was expecting this.

  • 12:10:33

    POPEThere were gasps in the courtroom. I was actually sitting in the last row of the courtroom, so I was able to kind of watch people and their reactions. And when the lawyer for Maureen McDonnell outlined this idea of the fact that she had a -- well, that outlined this argument that she had a crush on him and that they had a relationship that may have been inappropriate. There was an audible response from people in the courtroom.

  • 12:11:01

    KLIMANMichael Levy, the defense made this very unexpected and possibly unusual decision to put the McDonnell marriage, that troubled marriage, in the spotlight. It's not just about putting forward these tawdry details. This is not just a salacious case. There's a strategy here.

  • 12:11:19

    MR. MICHAEL LEVYYeah, no, there's clearly a strategy. And I think one of the biggest risks that you have in a situation where you've got two co-defendants in the same criminal case, who may not have defenses that are completely aligned. For example, if you read the indictment, it seems pretty clear that one of the defenses the governor has is that his wife didn't tell him about a lot of this stuff, that he was in the dark. But if he presents that in that direct a way, it's not going to seem very honorable. It's going to seem like he's pointing his finger at his wife.

  • 12:11:46

    MR. MICHAEL LEVYWhereas, if you create this so-called crush defense, it has the very interesting implication that both of the defendants get to present themselves in I think in a somewhat more sympathetic light. So the first lady of Virginia gets to present herself not as a scheming Lady Macbeth, who is desperately trying to gain money and power for her and her family, but rather as someone who's in a troubled marriage and is desperately seeking attention, which is something that may be much more sympathetic and resonate with the jurors much more.

  • 12:12:18

    MR. MICHAEL LEVYAt the same time, the governor gets to be able to essentially distance himself from his wife, but do it in a way that's not distancing himself vis-à-vis the offense, but rather using the troubled marriage as a way to make it clear why they're distant. So it resonates with both of their defenses. Obviously the only people who really know about this are the McDonnells. So it does put a premium on one of the two of them or both of them testifying, which is also another unusual thing that happened during the openings.

  • 12:12:47

    KLIMANSo she's moving from possibly being a Lady Macbeth to a desperate housewife. We want to hear from you. Join us by calling 1-800-433-8850. Or email us at kojo@wamu.org. Or get in touch with us through our Facebook page or send us a tweet @kojoshow. Are you following the trial of Bob and Maureen McDonnell? And what's your take on the defense strategy? Continuing with you, Michael Pope. The McDonnells are being tried together, but they have separate defense teams. And five lawyers are congregated around these tables. A little bit unusual, it's a bit of a circus there. What can you talk about, what that means for this trial going forward?

  • 12:13:32

    LEVYWhich Michael?

  • 12:13:32

    KLIMANMichael Pope. I'm sorry.

  • 12:13:33

    POPEIt's fine. It's the Michael show, here, right? So there are lots of lawyers here. I mean, the prosecution table has five lawyers. Maureen McDonnell has three lawyers, and the governor has five lawyers. So the room is packed with legal representation, all wearing very, very dark suits by the way. And so one thing that I was kind of struck by in the opening statements is there may actually be some distance here between Maureen McDonnell's lawyers and their legal defense, and the governor's lawyers and their legal defense. Most trials that I've covered and been in the courtroom for, there's two sides. There's the prosecutor's and then there's the defense.

  • 12:14:17

    POPEThis is going to be really different because it's going to add this separate layer of -- there's the prosecutors and then there's Maureen McDonnell's legal team and then there's the governor's legal team. And, you know, my impression from watching the opening statements is most of the fireworks are going to come from Maureen McDonnell's legal team. Because they're the ones that outlined this crush defense. They're the ones that really attacked Jonnie Williams in the opening statements. I mean he had changed his defense a number of times. You mentioned "Desperate Housewives." The thing that I was thinking of is that what we're really seeing here is kind of a cross between, you know, what might be "The Real Housewives of Richmond" and "Law and Order."

  • 12:14:58

    KLIMANMichael Levy, what does the prosecution have to prove and how are they building this case?

  • 12:15:03

    LEVYWell, they've got to -- they've got 14 different counts. And what they need to prove for each of the counts is actually substantially different. So they've got a conspiracy to deprive the citizens of the State of Virginia from their right to honest services via bribery. They've got then underlying bribery counts. They've got conspiracy to extort money from Jonnie Williams and a series of extortion counts related to that. They have some false statement counts related to the bank loans that did not include some of the loans in the applications and the personal financial statements, didn't include some of the loans that Jonnie Williams gave to the McDonnells.

  • 12:15:39

    LEVYAnd then there's an obstruction of justice count against Maureen McDonnell only for allegedly presenting a false handwritten note returning the dresses, stating that they were intended to be loaned to her -- thank you so much Mr. Williams for loaning these to me, I'm not giving them back to you -- after she was interviewed by federal agents.

  • 12:16:03

    POPESo that issue of the handwritten note, when Maureen McDonnell returned the designer dresses, she did so with a handwritten note. And that is at the heart of this charge that you just outlined. That came -- the prosecutors mentioned that in their opening statement. Maureen McDonnell's lawyer also mentioned that in his opening statement and actually flashed an image on, you know, on the screens of the handwritten note with this particular sentence that's at issue. And their defense has to do with how the note was written.

  • 12:16:37

    POPEBasically, you know, the defense is not that they had discussed giving -- the idea here is that the dresses would be returned to -- and sort of sold for charity, right? And so the prosecutors are saying, well that's a lie. They never discussed this in advance. And so the defense attorney is saying, well you have to look at the way this is worded, because there's another way to interpret this sentence to say that they had discussed charities in the past. But not necessarily that the note implies that they would sell the dresses for -- not necessarily that they had discussed previously selling the dresses for charity.

  • 12:17:19

    POPESo I think we're going to delve into some -- the mechanics of language in terms of this handwritten note and what it actually means.

  • 12:17:27

    KLIMANWe're getting phone calls. Bob in Germantown has a question. Bob, you are on the air. Thank you for joining us.

  • 12:17:34

    BOBThank you for taking my call. First of all, I just want to say that anybody that believes this load of baloney, I've got some, you know, some land, you know, down in Florida, some coastal land in the swamp that I want to sell them. I mean, please, this is desperate but it's not "Desperate Housewives." It's desperate defense. You know, it becomes almost a he-said, she-said. And how is this going to be -- to stand up in court? Oh, Jonnie, you're my man and I really had a crush on you and that -- please. Somebody use their sense.

  • 12:18:07

    KLIMANThank you for joining us. Let's go back to the defense arguments. For some people this seems to be spectacularly farfetched. What are they trying to do? What is the endgame here for them in dispelling the charge of conspiracy, Michael Levy?

  • 12:18:27

    LEVYWell, I think that one thing they're trying to do -- the troubled-marriage idea does get to the idea that these two individuals, in the midst of a troubled marriage, did not agree to extort money from Mr. Williams. So that cuts to sort of the agreement element of conspiracy, which is the heart of the conspiracy charge. But more generally, I think it's wrong to think that this is going to be the entire defense. I think -- I think this is a part of it. It's an element. It puts it in context. But at its heart, the defense, I think, really is going to be that there was not a quid pro quo, which is a requirement for a bribery charge. You've got to give something in exchange for something else.

  • 12:19:09

    LEVYAnd that something else has to be an official act. So whatever Maureen McDonnell may have done, she's not a public official. She can support whatever entities and organizations she wants to under the law, and that's not going to be enough to establish bribery. The indictment's very clear. You need to have established an official act from the governor. And that's where the whole defense comes in about the idea that part of what every governor in every state does is support businesses that are located in that state. So there can't really be a quo.

  • 12:19:40

    LEVYIn addition, it was very significant yesterday -- I think Mr. Williams started his testimony and he talked about the most explicit description he's given yet of an agreement to exchange something for the financial assistance. But the exchange was very clearly for support and help from Maureen McDonnell, not from Governor McDonnell. That's not going to be enough, as a legal matter, to get them over the hump -- the prosecution, that is.

  • 12:20:05

    KLIMANAnd you speak at somebody who has both prosecuted public corruption cases and been on the other side to defend the accused.

  • 12:20:14

    POPEOn the issue of quid pro quo, when the prosecutors were laying out their opening statement, they made really clear that there is not a singular piece of evidence that ties this whole thing together. The jurors are going to have to look at a variety of things. And it will be their job to put the pieces together. And they went through this timeline, you know, like I was saying earlier, that said o this date the gift was given. And on this following date the official action was taken and so on and so on.

  • 12:20:44

    POPESo was there really a quid pro quo? That's going to be something the jurors are going to have to come up with. And in order to believe that theory that there was a conspiracy, you really do have to imagine that Bob McDonnell and Maureen McDonnell are conspiring, that they're at least talking to each other, right.

  • 12:21:03

    POPESo one of the key parts of the defense here is they -- not only were they not conspiring, they were barely even talking to each other because their marriage was totally falling apart. This is a really important part of the defense. And when the governor testifies, which is going to be a moment of high drama, one of the things he's going to do in his testimony is read an email that he wrote to his wife during a very dark moment in their marriage. And apparently this email is going to -- from the governor to his wife is going to talk about what they can do to save their marriage.

  • 12:21:37

    POPEI mean this is the kind of thing that no one wants anyone else to read, let alone be read in open court, let alone for people in the media to be talking about, right. So Bob McDonnell and his wife are going to lay their personal life here out on the line as part of their defense. And it's going to be really ugly.

  • 12:21:59

    KLIMANLet's talk about that McDonnell stand-taking. He's going to do that and it's a risk, isn't it?

  • 12:22:08

    LEVYIt's an enormous risk for any criminal defendant to take the stand in a criminal trial. And it's very interesting that the defense team fronted that in their opening statements. I mean, basically the jury is now expecting at least Governor McDonnell to testify. When a defendant takes a stand in his own defense in a criminal trial, whether or not it does so as a matter of law, I think most jurors, the impact on that is that it fundamentally shifts the burden of proof and the standard of proof. T he burden of proof in a criminal case is that the government has to prove its case beyond a reasonable doubt.

  • 12:22:42

    LEVYOnce the defendant gets on that stand and starts testifying, I think most jurors ask themselves, do we believe him? And if they answer that question no, even if it's just to a preponderance of the evidence, they're going to convict him. And so instead of it being a case where the government has the burden of proving its case beyond a reasonable doubt, once the governor takes the stand, it really is going to become a case in which the defense has to prove innocence. They have to believe Governor McDonnell. He's obviously got a lot of experience communicating effectively to northern Virginia and Richmond.

  • 12:23:15

    KLIMANBut it's really depending a lot on charm and pathos.

  • 12:23:18

    LEVYIt is. And he probably has never encountered any question from the media that's going to be as remotely as aggressive and tuned in as the prosecution's cross examination is going to be.

  • 12:23:30

    KLIMANWe have a call from Heather in D.C. Heather, thank you for joining the conversation. Please go ahead. You're on the air.

  • 12:23:38

    HEATHERHi. I'm a criminal defense attorney. And I am thrilled to see a situation where a defendant is well armed to attack the government's case. Normally the government's resources and their ability to prosecute a case are so overwhelming that 98 percent of defendants in federal court plead guilty whether they have a decent defense or not.

  • 12:24:10

    POPEWell, not only is the defense well armed to take on the governor -- to take on the government, but the -- one of the chief defendants here is the former attorney general of Virginia. And he has assembled a pretty high level team around him, you know. And was -- like I was saying earlier, the attorney for the governor once ran for attorney general himself. And those are -- that's five lawyers working for the governor, plus the three that are working for Maureen McDonnell. So the defense has a total of eight lawyers working for them as opposed to the five for the prosecution.

  • 12:24:48

    LEVYWell, they have eight at the table. Trust me, they have more than eight working.

  • 12:24:52

    POPEThat's a very good point, right. Eight in the courtroom is what I meant to say.

  • 12:24:55

    KLIMANWe're running short on time but Michael Levy, we'll end with you. I understand that Virginia law doesn't limit gifts to the governor or his family but there is a reporting requirement that's at issue. Can you please talk briefly about that and how that charge is different with regard to the defense's strategy.

  • 12:25:12

    LEVYYeah, it is very interesting. The indictment actually makes a fair bid out of the fact that the governor did not disclose on his statement of economic interest forms all of the gifts that were provided to him. And what's interesting is, it wasn't actually listed as one of the 14 substantive charges, which does suggest that they did not have enough of a legal basis to charge him with a crime for not properly filling out that form. It raises some issues, as I know have been discussed in the general assembly in Virginia, about Virginia's epics laws and disclosure that's necessary.

  • 12:25:47

    LEVYBut one of the interesting things is that they did do was these two reporting counts with respect to the loan applications and whether or not the loan applications were filled out appropriately.

  • 12:26:00

    KLIMANIt is certainly a -- rich and juicy and we're mindful of not being too juicy according to some of the tweets we're getting in who want to keep it above board. But thank you both for joining us. Michael Pope is WAMU's northern Virginia reporter. Michael Levy is a partner at the law firm Paul Hastings. Thank you both for joining us. And thank you for joining us. We'll continue our conversation after a short break. Stay tuned.

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