The judge presiding over the embezzlement trial of a former Virginia Executive Mansion chef on Wednesday rejected a defense request to subpoena Attorney General Ken Cuccinelli and one of his top assistants to testify at a hearing on a motion to dismiss the charges.
Defense attorney Steve Benjamin claims the four felony counts should be tossed out because Cuccinelli remained on the case after former mansion chef Todd Schneider told the attorney general and investigators about alleged wrongdoing by Gov. Bob McDonnell and his family. The attorney general should have recused himself immediately because the governor is his client, according to Benjamin, but he remained until after the grand jury indicted Schneider.
Cuccinelli later bowed out because of the conflict and Norfolk Commonwealth's Attorney Gregory Underwood was appointed special prosecutor. The attorney general and Underwood both argued in court papers that the recusal cured the conflict in the case, and Richmond Circuit Judge Margaret Spencer agreed.
"This Court has found no authority supporting Defendant's claim that pre-indictment prosecutorial conflicts of interest, whether conceded or alleged, are the basis for the dismissal of a valid indictment after recusal of the conflicted prosecutor and appointment of a special prosecutor,'' Spencer wrote.
She added that "no testimony is needed about conflicts or 'prosecutorial decisions' by former prosecutors.''
Attorneys in the case were unable to comment because of a previously issued gag order.
A defense witness list filed in court earlier Wednesday says Sarah Scarbrough, the mansion's executive director, has been subpoenaed to testify at Monday's hearing. No other names are on the list now that Cuccinelli and his senior assistant, Patrick Dorgan, have been excluded.
Spencer's decision spares Cuccinelli, the Republican candidate for governor, from being compelled to answer questions in a politically explosive case less than four months before the election. State law requires a judge's approval to subpoena the governor, attorney general or lieutenant governor. In court papers opposing Benjamin's motion, Cuccinelli also cited a Virginia State Bar rule that says only a prosecutor can request a subpoena for a lawyer to testify in a case involving a current or former client, and the request must be approved by a judge.
Schneider faces an October trial date on charges that he took items from the mansion kitchen during his nearly two years as the chef for the McDonnells. In court papers, however, Schneider contends he was told to take the items in exchange for private catering services he performed, and he alleges that members of the governor's family also took state-owned items from the kitchen for their personal use.
The case has ties to Virginia's most powerful elected officials and ongoing state and federal criminal investigations into operations of the mansion kitchen and the relationship between the governor and First Lady Maureen McDonnell and Jonnie Williams, chief executive of troubled nutritional supplements maker Star Scientific Inc.
Williams, who has donated more than $100,000 to McDonnell and his political action committee, also has provided the governor's family tens of thousands of dollars in gifts that the governor has not disclosed on his required statements of economic interest. That includes a $15,000 check to McDonnell's daughter for catering at her 2011 wedding and a $6,500 Rolex watch that the Washington Post reported Williams purchased at the first lady's suggestion and that she later gave to the governor.
McDonnell has defended his decision not to disclose the gifts, citing Virginia law that requires reporting only gifts given directly to officeholders, not to family members. Gifts from immediately family members and close friends also are exempt, and McDonnell has said Williams is a family friend.
Williams and Star Scientific, the subject of a federal securities investigation and lawsuits by shareholders, also have provided nearly $19,000 in gifts to Cuccinelli, including nutritional supplements, a lake house vacation and a catered Thanksgiving dinner. Cuccinelli has disclosed those gifts, though most it went unreported until Cuccinelli amended his economic interest statements to list gifts he said he had previously overlooked.