Camp Fire

U.S. Senator Mark Warner and Virginia Gubernatorial Chief of Staff Paul Reagan in the Hot Seat Over Former State Senator Puckett’s Resignation

The plot thickens in Virginia. In the aftermath of former Governor Bob McDonnell and former First Lady Maureen McDonnell being convicted in federal court of numerous felony counts related to public corruption while in office for allegedly accepting more than $177,000 in gifts and loans in exchange for official acts (See my blog post on September 4, 2014), new revelations call into question whether U.S. Senator Mark Warner (D-VA) or current Gubernatorial Chief of Staff Paul Reagan acted improperly in attempting to influence former state Senator Phil Puckett (D-VA) from resigning his seat. Former state Senator Puckett held the potentially tie-breaking vote in a state senate evenly divided along party lines, with the Democratic lieutenant governor able to cast the tie-breaking vote. With Puckett in the state senate, Democrats were poised to pass Governor McAuliffe’s top legislative priority, expanding Medicaid under Obama Care. With former state Senator Puckett’s resignation, Republicans would hold a one vote majority and could likely pick up the seat in an open special election because Puckett’s district leans very Republican.

On June 25, 2014, the Associated Press reported that a federal grand jury was investigating the circumstances surrounding the resignation of former Virginia State Senator Phil Puckett and whether he violated federal law by allegedly accepting a position on the Virginia tobacco commission in exchange for resigning his seat in the state general assembly. (See my blog post on July 9, 2014.) Also at issue was whether former state Senator Puckett, as a part of that same alleged scheme, sought to have his daughter, Martha Puckett Ketron, confirmed by the Virginia Senate as a state court judge. Former Senator Puckett ultimately took himself out of consideration from the tobacco commission position and has denied any wrong doing. To date, he has not been charged in this investigation.

The Washington Post reported on October 10, 2014, that the son of the former state senator, Joseph Puckett, met with federal investigators more than two weeks ago and disclosed to them that he had spoken with U.S. Senator Mark Warner about the possibility of his sister being appointed to the federal bench or being hired by CGI, a private high-tech company in southwestern Virginia, in an effort to dissuade former state Senator Puckett from resigning the general assembly. U.S. Senator Mark Warner is a former governor of Virginia and is running for reelection to the U.S. Senate this November. Senator Warner’s campaign strongly denies any wrong doing but acknowledges the telephone call took place. Senator Warner’s campaign explained that the senator was merely, “brainstorming” with Joseph Puckett about possible jobs for Mrs. Ketron. Senator Warner’s staff stated that the U.S. Senator did not explicitly offer any job to Mrs. Ketron. In fact, Senators Warner and Kaine both had recommended two other candidates for the sole open seat on the federal bench in Virginia earlier the same day that Senator Warner spoke with Joseph Puckett.

In the wake of the conviction of former Governor Bob McDonnell for eleven violations of federal law, including the bribery and deprivation of honest public services statutes, commentators and legal scholars are paying close attention to instances where it appears that things of value may have been offered to a public official in exchange for an official action. Whether Senator Warner’s alleged involvement in the Puckett scandal will hurt his chances at reelection remains to be seen. According to the political website realclearpolitics.com, Warner holds an 11 point lead over his challenger based on an average of several public polls of likely Virginia voters taken between September 17 and October 6, 2014. Obviously, this polling could not take into account any shifts in voter opinions since these allegations surfaced on October 10th.

Prior to the McDonnell prosecution, such backroom dealing could have easily been dismissed as political horse trading, which is common in legislative deal-making. In fact, some Virginia lawmakers believe the McDonnell prosecutions have criminalized politics. “I’ve seen a lot worse up here than that, Ok?” Virginia Senate Democratic Leader Richard Saslaw told the Daily Press newspaper in Newport News, Virginia. “Misjudgment? Absolutely. But that’s not a crime,” Virginia Senator Saslaw said in response to the McDonnell indictment. Sources close to the federal investigation also told The Washington Post that Joseph Puckett turned over text messages from the day after his call with Senator Warner in which he discussed the details of the call. According to The Post, the text messages describe the phone call as “an hour long” and state that Senator Warner, “had no answer for how Democrats could deliver for Martha except for a potential corporate gig of some kind, which is not what she wants.”

Senator Warner is not the only public official feeling the heat. Chief of Staff Paul Reagan who serves under current Virginia Governor Terry McAuliffe (D-VA) was forced to apologize October 3, 2014, after it was reported that he sought to offer Mrs. Ketron a position as head of a state agency, if former state Senator Puckett did not resign. The Washington Post reported that Reagan stated the following on a voice message he left for former state Senator Puckett, “If there is something we can do for her, I mean, you know, we have a couple of big agencies here that we still need agency heads. We could potentially, subject to approval of the governor and so forth, you know, the Department of Mines, Minerals and Energy could be available.” Neither U.S. Senator Warner nor Mr. Reagan have been charged with any crime and both deny any wrong doing. Every person accused of a criminal offense is innocent until proven guilty beyond a reasonable doubt. To its credit, however, Virginia has at least made some effort to pass ethics reform, albeit tepid. (See my blog post on October 2, 2014.)

Any hypothetical criminal investigation by federal prosecutors into these acts would surely focus on the federal bribery and deprivation of honest public services statutes. 18 U.S.C. Section 201 makes it a federal criminal offense to offer or promise any public official a thing of value with intent to influence any official act. 18 U.S.C. Sections 1341 and 1343, commonly referred to as the “mail and wire fraud statutes,” prohibit any person from using the mail or interstate wire systems to participate in a scheme to deprive the citizens of public honest services. Any person charged under these statutes could potentially challenge such a prosecution by arguing that there was no intent to influence, bribe, or corrupt a public official in exchange for the thing of value, thus there was no quid pro quo. It is uncertain whether federal investigators will pursue the alleged conduct of either U.S. Senator Warner or Gubernatorial Chief of Staff Reagan. Come Tuesday November 4th, however, voters may have their say first.

Terry Eaton -
Attorney, Professor & Speaker

Terry Eaton is the Founder and Principal at the Eaton Law Firm, PLLC.  Mr. Eaton focuses his practice defending

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