opinion | Harvey Silverglate

Politics as usual often isn’t a crime

Massachusetts had its Probation Department scandal, but it is not alone. Federal assaults on state political culture (or “political corruption,” depending upon your point of view) are again popping up around the country. But hints coming from the appellate courts indicate this round might be different.

Recent developments show a judicial rebellion might be brewing against federal Department of Justice overreach in its prosecution of state political figures. These courts are questioning whether activities that are part of accepted state political culture should — or even can — be prosecuted under vague federal prohibitions against, for example, officials depriving their states of “honest services.” State government officials in Massachusetts, Virginia, and Illinois are currently embroiled in appeals against the Department of Justice. A common question runs through all three cases – whether the officials’ conduct constitutes fraud or merely common (even if sometimes tawdry) state politics. Significantly, defendants in recent “corruption” convictions have been freed on bail pending their appeals.


In Massachusetts — following a Globe Spotlight team investigation — former probation chief John O’Brien, along with two lower echelon officials, were convicted in July 2014 of fraud and racketeering. They were found guilty of running a “corrupt scheme” that favored the hiring of candidates recommended by legislators who held appropriation purse strings. Long-time state political observers were puzzled, since legislator-recommended candidates for certain government positions have been par for the course for generations in Massachusetts (as elsewhere).

The First Circuit Court of Appeals in Boston reversed trial judge William Young’s order jailing the defendants pending appeal. On Jan. 9, the three-judge panel noted, “The court is persuaded of a sufficient probability that the appeals present a ‘substantial question.’ ”

In the most recent case, former Virginia Governor Robert McDonnell was sentenced on Jan. 6 to two years in federal prison for introducing a local businessman to government officials whom the businessman-turned-government-witness was eager to recruit to test and promote his company’s health product. The businessman lavished gifts upon the governor and his family.

In an extraordinary demonstration of concern by numerous sectors of political and civil society, friend-of-the-court briefs were filed in McDonnell’s support by former and current members of the Virginia General Assembly, former Virginia attorneys general, law professors, and the National Association of Criminal Defense Lawyers, which has been working with liberal and conservative partners to rein in federal prosecutorial overreach. McDonnell’s supporters span the spectrum, from former US Attorney General John Ashcroft to former president of the NAACP Benjamin Jealous.


The brief filed by current and former members of the Virginia General Assembly summarizes the issue: The feds are using the anticorruption statutes as “a standard-less sweep that criminalizes the most routine political activities.” The six former Virginia attorneys general (four Democrats and two Republicans) suggested that prosecutions like McDonnell’s “would wreak havoc upon the public life of Virginia by casting a shadow of federal prosecution and imprisonment across normal participation in the democratic process.” And the law professors complained that defendants were deprived of fair notice of what the law prohibits. The appellate court reversed the trial judge’s order jailing McDonnell during appeal.

Consider, too, the oldest of the three cases. In 2011, former Illinois governor Rod Blagojevich was tried in a much misunderstood political prosecution. The dramatic centerpiece of Blagojevich’s supposed criminality was that he was overheard on a wiretap speaking with associates about how to make the most beneficial use of his power to appoint an interim US senator to take the seat vacated by White House-bound Barack Obama. This quintessentially political act was transmogrified by prosecutors into the governor’s corrupt “sale” of a vacant Senate seat to the highest bidder.


Blagojevich’s conviction and 14-year sentence were argued before the Seventh Circuit Court of Appeals in Chicago in December 2013. A decision has yet to be rendered. In oral argument, the court questioned whether the feds are redressing real corruption or are instead asserting unconstitutional power over ordinary state political activity. Judge Frank Easterbrook asked the prosecutor how Blagojevich’s treatment of the Senate seat differed from a political deal dating to the Eisenhower administration. Ike was thought to have promised the then-California governor, Earl Warren, a Supreme Court appointment, if Warren supported Eisenhower’s presidential run. “If I understand your position,” said Easterbrook, “Earl Warren should have gone to prison; Dwight Eisenhower should have gone to prison.”

Though oral arguments do not always predict case outcomes, Easterbrook’s incisive query and the government’s inadequate answer may explain the unusually long delay in the Seventh Circuit’s decision. At the least, it shows that the federal bench is wrestling with Blagojevich’s defense: that his actions constituted no crime.

In all three cases, the defendants were not prosecuted under state criminal laws, because state law did not outlaw their conduct. The officials’ actions, however, were swept within a set of vague federal anti-fraud statutes.

Was it fraud, or routine political give-and-take? If state political culture is to be reformed, should it not be up to the voters to insist upon it? Isn’t that where the legitimate democratic power has, and should have, resided all along?


Harvey Silverglate, a Boston criminal defense and civil liberties lawyer, is the author of “Three Felonies a Day: How the Feds Target the Innocent.” Timothy C. Moore provided research and editing assistance.