Former Virginia Republican Gov. Robert McDonnell – once prosecuted by now-Special Counsel Jack Smith for violating federal bribery law only to see his conviction unanimously overturned by the U.S. Supreme Court – said the ex-war crimes prosecutor would rather win a case than have the facts correct.
In 2016, federal prosecutors announced they would not pursue a second case against McDonnell after the Chief Justice John Roberts-led unanimous ruling vacating the conviction. McDonnell had been accused of accepting luxury gifts from a businessman in exchange for promoting a supplement he was hawking.
In vacating McDonnell's conviction, the Supreme Court ruled that setting up a meeting or organizing an event – without doing more – isn't considered an "official act," as charged by the Justice Department, where at the time the Public Integrity Section was run by Smith.
Smith, as special counsel, has indicted former President Donald Trump for mishandling classified information following a federal raid on his Mar-a-Lago compound.
McDonnell joined "Life, Liberty & Levin" on Sunday to sound off about his case and that of the former president.
"That stretch was exceptionally painful; three-and-a-half years from the investigation until we got the unanimous vindication by the U.S. Supreme Court. I knew in my heart from the very beginning – I'm a lawyer, obviously, looking at the law and the facts – that these charges were completely wrong," he said.
McDonnell said his attorneys at the time went to the Justice Department with an "extensive brief" about why they believed Smith and his prosecutors "got the law wrong" and why he, the defendant, was innocent.
"And yet they persisted and pulled the trigger and the indictments started. And of course, they've got all the investigators. They got all the money; they've got the access to The Washington Post through multiple leaks," he alleged.
McDonnell said that even though the Roberts court vacated the conviction, it was a difficult time for him and his family.
"My walk-away from that, especially as I looked at what [Smith] did in the Lois Lerner case with advising people that they were was okay to go after conservatives and Bob Menendez and other cases is that I think he's just overzealous," he said.
In April 2015, the Justice Department indicted Menendez, a Democratic U.S. senator from New Jersey, on bribery allegations alleging he wrongfully accepted gifts from a Florida ophthalmologist. Menendez pleaded not guilty and the case ultimately ended in a mistrial in late 2017.
Outside the Newark courtroom at the time, Menendez said "the way this case started was wrong, the way it was investigated was wrong, the way it was prosecuted was wrong…"
On "Life, Liberty & Levin," McDonnell claimed Smith would "rather win than get it right," and claimed that alleged mindset is influencing some of the moves in the Trump case.
"I think he doesn't do an honest look at the law to see if the facts apply to the law," McDonnell said.
Smith also saw the campaign-finance-related prosecution of former Democratic presidential candidate then-North Carolina Sen. John Edwards declared a mistrial, Levin noted.
The New York Times at the time called it a high-profile example of several "visible efforts" by Smith's DOJ section, listing other investigations where charges were unsuccessful or not brought including against then-Sen. John Ensign, R-Nev., former House Majority Leader Tom DeLay, R-Texas, the late Rep. Don Young, R-Alaska, and ex-Rep. Alan Mollohan, D-W.Va.
Following his appointment as special counsel by Attorney General Merrick Garland in November 2022, Smith pledged to "conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice."
"The pace of the investigations will not pause or flag under my watch. I will exercise independent judgment and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate," Smith said.