Blog Post

Constitution Check: Does the McDonnell verdict have constitutional meaning?

September 9, 2014 | by Lyle Denniston

Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, examines how reaction to the recent McDonnell public corruption trial in Virginia could lead to less faith in government.

 

Bob_McDonnell_by_Gage_Skidmore
Bob McDonnell. Image from Gage Skidmore

 

THE STATEMENTS AT ISSUE:

 

“I’m not a very political person…but it made me look at the whole political system differently. The fact that someone who was respected and held up could be guilty of this and kept the secret for so long, it made me wonder, ‘Do we have to look at all our government officials this way?’ ”

 

– Susan Trujillo, one of the jurors who found former Virginia Governor Robert McDonnell and his wife Maureen guilty of several charges of corruption, in remarks quoted in The Washington Post on September 5, the day after the verdict.

 

“It is clear that the public’s trust and confidence has been shaken, and that’s unacceptable. I am fully committed to taking the necessary steps to restore that trust and confidence.”

 

– William J. Howard, the Republican speaker of the Virginia General Assembly, as quoted in The Washington Post on September 6.

 

“The sense around here is it’s going to take some time to restore the public trust in elected officials.”

 

– David J. Toscano, the Democratic leader of the minority in the Virginia General Assembly, as quoted in The New York Times on September 6.

 

WE CHECKED THE CONSTITUTION, AND…

 

The Constitution contains not a word about the need for ethical behavior by people elected to public office in America, but the Founders spent a great deal of time exploring ways to create a government in which “civic virtue” would be an abiding principle. It was an idea borrowed from the ancient Roman republic, and it meant that members of the community -- and especially their leaders -- could put aside their private interests and devote themselves to promoting the common good.

 

James Madison, the Constitution’s principal architect, put it this way in Federalist Paper 57 in February 1788, during the campaign for ratification of the new document: “The aim of every political constitution is or ought to be first to obtain for rulers, men who possess most wisdom to discern, and most virtue to pursue, the common good of the society, and in the next place, to take the most effectual precautions for keeping them virtuous, whilst they continue to hold their public trust.”

 

It thus was obvious that, while optimistic that ethical leaders of government could be found, the Founders wanted to reinforce those leaders’ devotion to the good of the public by back-up measures. In modern times, codes of ethics in legislative bodies are one such measure, but the more effective means probably is the range of criminal laws against public corruption.

 

Behind both ethical codes and criminal prosecution is the basic understanding that trust in the government is necessary in a republic that is accountable to the sovereign people. Again, James Madison is the authority. In another Federalist Paper (No. 55), he argued that there are qualities in human nature “which justify a certain portion of esteem and confidence.” And then he stressed: “Republican government presupposes the existence of these qualities in a higher degree than any other form.”

 

So, when the public discovers that one of its chosen leaders has faltered, as the jurors found last week at the conclusion of the public corruption trial of former Virginia Governor Robert McDonnell and his wife, there is a shock to the civic conscience. Juror Susan Trujillo probably spoke for many Virginians, and other Americans, when she said the evidence in the case made her look differently at the whole political system. Once breached in this way, the public’s trust can, indeed, be skeptical of those who would seek its restoration.

 

The McDonnells, of course, have the right to appeal their convictions, and news stories after the trial have been filled with speculation about the ways they and their lawyers might go about challenging the verdict. There also has been a flurry of commentary by pundits sympathetic to the McDonnells about how prosecutors allegedly stretched the law to make it apply to them in ways not attempted before, especially in the kind of “official acts” that were traded for gifts and favors.

 

While those parts of the story play out in the courts and in the media, the image of a once-respected and trusted public official standing in the dock as guilty verdicts were read out will not soon fade away. This was particularly shocking in Virginia. For much of the history of the Old Dominion, its leaders have talked about “the Virginia Way,” meaning that the traditions of noble public service handed down by Virginians Washington, Jefferson and Madison were alone sufficient to justify trust in the government.

 

That is why a professor in Virginia could be quoted in the media after the McDonnell verdict as saying that “you could probably have drawn a circle around Capitol Square [in Richmond] for a mile and not found three people who would have predicted the outcome.” Now, the fracture of “the Virginia Way” may be indelible.

 

And yet, in modern times, such public corruption verdicts are hardly uncommon, and there can be little doubt that this has contributed to the constant stream of polling data showing Americans’ loss of faith in their government.

 

And, in a very real sense, that is a constitutional problem, even if it does not yet amount to a constitutional crisis. When the faith of the general public in government wanes, civic involvement is very likely to decline, leaving the determination of important public policy even more to the lobbyists, the pressure groups and the party factions, many of whom pursue agendas that may not have the actual support of the general public and about which the public may have no voice.


 
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