On September 8, 2016, the United States moved to dismiss the charges against Robert F. McDonnell and his wife Maureen McDonnell. The reason given for the decision was short but thoughtful: "After carefully considering the Supreme Court's recent decision and the principles of federal prosecution, we have made the decision not to pursue the case further." The decision not to prosecute is a matter of prosecutorial discretion and cannot be reviewed by a court. The prosecutor's discretion is respected by the Courts, and has been seen lately in many high profile matters. For example, FBI Director James B. Comey, a prosecutor whose dignity some might say, in the words of Lionel Trilling, "is wholly manifest in word and deed...," was strongly criticized for not recommending the prosecution of Hillary Clinton over her e-mails. His reasoning was: "Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case."
Mr. Comey's statement is consistent with the Government's statement as to why it would not prosecute a second time Governor McDonnell, whose conduct Chief Judge Roberts viewed as "tawdry tales of Ferrari's, Rolex's and ball gowns..." In both cases, the prosecutor was stating that, however one may view the conduct, as a prosecutor it is not reasonable to prosecute the case. These are not casual decisions. They are reflections of the essence of prosecutor's power -- to prosecute or decide not to prosecute. The message from Chief Judge Roberts was this "....our concern is not with tawdry tales of Ferrari's, Rolex's and ball gowns. It is instead with the broader legal implications of the government's boundless interpretation of the federal bribery statute." The prosecutors in the McDonnell case, like FBI Director Comey, understood, that while the discretion to prosecute is theirs, a prosecution based on a "boundless interpretation" of the law will not be permitted to stand.
See our earlier blogs....The Supreme Court did not Condone the Conduct when it Vacated the Virginia Governor's Conviction for Bribery, June 28, 2016, and Clinton's e-mails and a Lesson in Prosecutorial Discretion, July 16, 2016