The Criminalization of Politics Unseemly Behavior Is Not the Same Thing as Committing a Criminal Act

Pittsburgh Post-Gazette (Pittsburgh, PA), January 8, 2016 | Go to article overview

The Criminalization of Politics Unseemly Behavior Is Not the Same Thing as Committing a Criminal Act


Experience teaches us to be most on our guard to protect liberty when the government's purposes are beneficent.

- Louis Brandeis

The impulse to ferret corruption from politics corrupts the criminal justice system when it causes overzealous prosecutors and judges to improvise novel interpretations of the law of bribery. Consider Robert McDonnell's case.

Virginia's former Republican governor has been sentenced to prison for actions that he could not have reasonably anticipated would be declared felonies under a dangerous judicial expansion of federal law defining bribery of public officials. Today the Supreme Court will decide whether to review Mr. McDonnell's conviction.

Compelling reasons for doing so are explained in friend-of-the- court briefs submitted by, among others, 31 current governors; 60 former state attorneys general; 13 former federal officials, including legal counsels to every president starting with Ronald Reagan; and three law professors from Harvard and the University of Virginia. All agree that Mr. McDonnell's conviction resulted from unreasonably stretching the understanding of quid pro quo corruption - you do X for me, I will do Y for you.

Democratic politics is transactional. Promises are made to secure permission to wield power: If we support you, will you pursue policies we prefer? Vote for me and I will deliver this benefit for you. And for 240 years American politicians have been attentive to supporters who contribute to those whose agendas they favor.

Mr. McDonnell had an unseemly relationship with a Richmond businessman who showered the governor with gifts, loans and perks. Virginia law permits state officials to accept gifts and never during Mr. McDonnell's trial did prosecutors suggest he had violated state law. If the businessman hoped that Mr. McDonnell would take official government actions benefiting his diet-supplement enterprise, he was disappointed.

The Supreme Court and other courts have defined an "official act" as the actual exercise of government power. The businessman wanted certain acts - state funding for his firm, a state study to validate his supplement and inclusion of it in Virginia's health plan. None of these acts occurred.

Nevertheless, prosecutors presented a redefinition of "official act" and the trial judge instructed jurors that they could find an "official act" in behavior that couldhave some attenuated connection to a potentialgovernment decision. An appellate court has endorsed this. …

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