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Legal ethicist Jack Marshall weighs in on Bob McDonnell 'Giftgate' scandal

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On January 21, former Virginia Governor Bob McDonnell and his wife, Maureen McDonnell, were indicted by a federal grand jury. The McDonnells were charged with making false statements, wire fraud in the denial of honest services, and obstructing a federal proceeding.

The charges stemmed from a scandal that has come to be known as “Giftgate” because it involved the McDonnell family's alleged acceptance of thousands of dollars worth of gifts and cash from Jonnie Williams, the former chairman of Star Scientific, a company that manufactures dietary supplements.

In a telephone interview with the Charlottesville Libertarian Examiner on January 23, ethicist Jack Marshall, president and founder of ProEthics Ltd. and publisher of Ethics Alarms, said that he does not expect the former governor to be convicted because it will be hard for prosecutors to prove a “quid pro quo” took place.

Rationalizations

Marshall said that McDonnell, in making rationalizations for his behavior since the allegations of wrongdoing came to light last year, was the victim of a fallacy he calls “Marion Barry's Misdirection.” That is, like the colorful former mayor of Washington, D.C., McDonnell has tried to wave away charges of ethical misbehavior by pointing out that everything he did was within the black-letter of the law.

That kind of situation, Marshall pointed out, demonstrates the difference between ethics and rules.

“The law steps in,” he said, “when ethics fails.” Written rules can point people in the direction of ethical behavior, but they do not compel such behavior.

Ethics rules in government are often designed to help elected officials "avoid the appearance of impropriety,” which is important because when the public perceives impropriety, trust in government is undermined.

McDonnell, Marshall said, was aware that his behavior raised red flags of impropriety because – at least according to the narrative contained in the indictment – the governor and his wife went to great lengths to hide the gifts received from Williams, even while remaining within the written rules of the Virginia code.

Those kinds of “red flags,” he continued, are the reason some ethics rules are written down in the first place – to alert those who come under their purview when they may be stepping over an ethical boundary.

Compliance and compartmentalization

Comparing Virginia's ethics guidelines to those of other states, such as Illinois and New Jersey, Marshall -- co-editor of The Essential Words and Writings of Clarence Darrow -- pointed out that those other states are so pervasively corrupt that new rules are regularly added to the law to address new situations.

The result is a sort of “check the box” mentality, or compliance culture, that suggests that if there are enough rules written down, ethics violations will correspondingly decrease. The problem is that those who make these kinds of rules are satisfied when the boxes are checked even if the underlying problems of corruption are unaddressed.

While the Virginia General Assembly is currently considering new rules for accepting gifts by officeholders and their families, the important thing is that public officials have personal integrity, that they understand that ethics is not about “checking boxes” and meeting the letter of the law.

“Ethics is dynamic,” Marshall said. It is more than just written rules but it is something embedded in the hearts of individuals. They either understand the difference between right and wrong, or they don't. That is how unethical people get away with – or try to get away with – a lot of wrongdoing under the cover of obeying the law as it is written.

In an article on his web site, Jack Marshall identifies at least ten rationalizations used by the McDonnells to defend their behavior. He notes that Governor McDonnell's “ethical instincts were being suffocated by a thick blanket of rationalizations, and if any ethics alarms were going off, neither he nor his wife could detect them.”

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