Fuzzy federal law may let McDonnells off the hook

Virginians rightly disgusted by the sleazy behavior of ex-governor Robert McDonnell need to brace for the possibility that he and his wife could eventually be fully cleared on appeal even though they were convicted of a total of 19 corruption felonies.

Such an outcome would be annoying yet plausible under federal law, which is fuzzy about some key points under which the McDonnells were convicted.

We won’t know for months, at least, whether the two go free. If they do, it would show that Robert McDonnell (R) was shrewd enough to stay barely on the right side of the law by avoiding doing too much to help the businessman who gave him the Rolex watch, Ferrari ride and other goodies. It would also underline the need for Virginia to tighten its famously forgiving ethics laws. The state should not depend on the feds to prevent a governor from accepting fancy vacations and sweetheart loans from someone seeking favors like executive Jonnie Williams.

The possibility of the McDonnells’ ultimate legal vindication was suggested by a federal appeals court ruling last week that said Robert McDonnell could postpone reporting to prison to begin his two-year sentence while his appeals were pending.

In making that decision, the court said the case presented a substantial legal question that might lead a higher court to throw out Robert McDonnell’s conviction or order a new trial. If that happened, then the verdicts against his wife, Maureen, could go, too.

Many legal experts — including Democrats unsympathetic to Robert McDonnell’s politics — have said the higher courts might overturn the verdicts on grounds that the law is too vague about what’s permitted.

They said the ex-governor couldn’t have known in advance that he was committing a crime by giving access of various sorts to Williams. That included using the governor’s mansion to host a product launch and asking a Cabinet secretary to meet with the businessman.

“None of the case law up until that point, nothing in the statute, would have suggested that introductions and access were criminal,” Nancy Gertner, a former federal judge who now teaches law at Harvard, said. She and a Harvard colleague wrote a brief supporting McDonnell.

“The criminal law has to be clear. It has to give notice. Otherwise, every politician is vulnerable to an ambitious prosecutor,” said Gertner, who was appointed to the bench by President Bill Clinton.

Six former state attorneys general, including four Democrats, also filed a brief supporting McDonnell. They said the conviction relied on an “expansive interpretation” of federal law that would criminalize routine political dealings.

The Supreme Court has shown interest in intervening in such cases. The justices have tried to put the brakes on what they see as overly zealous interpretations of the law by prosecutors.

“This is an area of criminal defense law where it seems there’s a pattern of the Supreme Court repeatedly telling the lower courts, ‘You got it wrong,’ “said Patrick O’Donnell, a white-collar defense practitioner at Harris, Wiltshire & Grannis.

Former federal prosecutor and independent counsel Scott Fredericksen said: “There’s a very good chance that the defense is going to win a reversal. . . . This area of the law has been litigated over and over again and consistently gets reversed at the Supreme Court level when the government takes a very aggressive theory, as I believe it did here.”

If the McDonnells are cleared, it would fuel cynicism that the powerful and well-connected get special treatment.

But the real, underlying problems here are different. First, as mentioned above, state ethics laws are absurdly lax.

In addition, in the long run, we need to fix the larger, chronic scandal under which our political leaders routinely and legally provide extra access to donors on whom they openly depend to finance their campaigns.

In a telling moment during his trial, McDonnell matter-of-factly used the term “donor maintenance” to describe a weekend of meetings with contributors at the luxury Homestead resort in Hot Springs, Va.

That’s the mind-set of our politicians, who spend a substantial fraction of their working hours soliciting funds from well-heeled people who usually want something in return.

We should change the culture so our elected leaders can devote that time instead to doing their jobs better for the public as a whole.