Bob McDonnell and the criminalization of politics

For former Virginia Governor Robert McDonnell, found guilty last week of fraud and extortion, I have only the small amount of sympathy reserved for those who fall from grace deservedly, but not due to true malice or viciousness. However, I agree with William & Mary law professor Jeffrey Bellin that charges like those brought against McDonnell present the real danger of criminalizing ordinary politics.

The essence of the legal case against McDonnell is that he solicited money from a company to act on its behalf (thus “defrauding” Virginians who elected him to act on behalf of “the people”) and, similarly, that he obtained money “under color of official right.” The doctrines may seem a bit strained, but it’s easy to understand why the law forbids such action.

But how does one distinguish these offenses from the common situation in which individuals, companies, and unions give candidates substantial amounts of money in the hope that they will favor them in some fashion? In theory, the distinction turns on whether the recipient accepts the donation with the understanding that he or she will perform official acts in exchange.

The problem, as professor Bellin observes, is that a jury is permitted to infer such an understanding from circumstantial evidence. If the jury thinks it sees “knowing winks and nods” (these words actually appear in the jury instructions in McDonnell’s case), it can render a verdict that will send the public official to prison for a long time.

The “knowing winks and nods” standard, if one can even call it one, leaves prosecutors with enormous discretion to go after public officials they dislike for personnel reasons or want to injure for political purposes. The ridiculous, politically-motivated attempts to portray Governors Rick Perry and Scott Walker as criminals demonstrates that prosecutors will take advantage of this opening.

In the short run, this form of “lawfare” will be, as it has been in other contexts, waged mostly against Republicans. But, as Republicans fight back, the targeting will become bipartisan.

Either way, the phenomenon will be unhealthy. As Bellin concludes, “a political system where any given federal, state or local official is just a wink, nod, and a motivated prosecutor away from federal prosecution in untenable.”

Why, then, do we seem headed down that road? It may be that the blurring of the distinction between real criminality and ordinary politics is simply the unintended result of an overzealous attack on corruption.

However, I believe that for the left (think Occupy Wall Street, for example) there is no distinction between corruption and ordinary politics, to the extent that ordinary politics stands in the way of limitless federal power and the confiscation of property. And I believe that this sentiment is part of what’s driving the criminalization of politics.

I plan to say more about this in an upcoming post.

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