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Don’t make a federal case out of it

Bob McDonnell, the former governor of Virginia, spoke to the media outside the US Supreme Court on April 27.Alex Wong/Getty Images/File

FORMER VIRGINIA GOVERNOR Bob McDonnell seems poised to win a Supreme Court appeal of his federal conviction for bribery and extortion, to the dismay of good government advocates. McDonnell was convicted of accepting $177,000 in gifts from businessman Jonnie Williams who sought and received the governor’s help in promoting a dietary supplement. Reversal of this conviction will effectively legalize bribery, reformers assert.

Not exactly. Virginia law did not prohibit McDonnell’s conduct. The central question before the Supreme Court is not whether that conduct should be legal but whether it was illegal under federal anti-corruption statutes.

The legal intricacies aside, the McDonnell case raises a broader question: When is politics as usual a federal crime?


That has become a familiar question and a pressing one for federal courts. McDonnell is only the latest in a series of shamefaced state officials prosecuted under broadly interpreted federal statutes. Former Massachusetts House speaker Sal DiMasi was convicted of conduct that was arguably legal under state law. Former Massachusetts Probation Commissioner John O’Brien is appealing his racketeering conviction of racketeering for practicing political patronage.

“Political logrolling” is not bribery, federal appeals court judge Frank Easterbrook recently observed, vacating former Illinois Governor Rod Blagojevich’s fraud conviction for a failed effort to obtain a cabinet appointment from then President-elect Obama in exchange for appointing Valerie Jarrett to Obama’s US Senate seat. It was a Pyrrhic victory for Blagojevich, serving a 14 year sentence on remaining corruption counts, but Easterbrook’s opinion was a warning to prosecutors: Targeting this sort of routine horse trading would criminalize a wide range of political appointments. “Some historians say that this is how Earl Warren came to be Chief Justice of the United States,” Easterbrook wrote. “He delivered the California delegation at the 1952 Republican convention to Eisenhower.”


McDonnell’s conduct was more unsavory because it involved personal profit, but he argues that he did not perform any “official acts” in exchange for gifts, as required by federal law: He helped Jonnie Williams gain access to potentially helpful officials but did not try to influence their deliberations. “In order to engage in ‘official action’ an official must either make a government decision or urge someone else to do so,” McDonnell’s attorney argued. “The line is between providing access to decision makers. . . and trying to influence (their) decisions.”

That may seem a fine line, but elected officials often assist and provide access to constituents, as Justice Stephen Breyer pointed out. A definition of “official acts” that includes such assistance would criminalize routine political behavior and relationships between officials and people they represent.

“So it should,” some reply, scoffing at the “everybody does it defense.” But that is an argument for Virginia legislators to prohibit elected officials from accepting valuable gifts, and in the wake of the McDonnell case, they passed an ethics reform bill. It is not justification for federal prosecutions based on creative, unpredictable interpretations of federal law.

If you view McDonnell’s conviction simply as just dessert for sleazy behavior you’ll miss its essential due process questions. Everyone is entitled to notice of what the law proscribes. How could McDonnell have known that his conduct was felonious? Indeed, since it was not barred by Virginia law at the time, he had reason to believe it was legal.


The legality of McDonnell’s behavior under state law also raises federalism questions. His prosecution “marks an extraordinary intrusion by federal prosecutors into an area of traditional state regulations,” an amicus brief by the National Association of Criminal Defense Attorneys points out. “Federal-state tension becomes particularly acute when federal prosecutors turn broadly worded federal statutes against local elected officials.”

Such intrusions can facilitate corruption more dangerous than the corruption they aim to contain. Consider the case of Don Siegelman, former Alabama governor, currently completing a seven-year sentence under a federal conviction for bribery, for reappointing to a state board a donor to a state lottery campaign.

Siegelman is a Democrat; his prosecutors were Republican appointees, and there was ample evidence that his controversial 2004 prosecution for what was at worst routine patronage was politically motivated, undertaken partly at the behest of then White House advisor Karl Rove. Criminalize common political behavior and you’re apt to politicize criminal prosecutions.

Federal prosecutors are not necessarily immune to political pressures and some harbor political ambitions. But the unprecedented increase and scope of federal criminal statutes in recent decades have given them unprecedented power. As attorney Harvey Silverglate demonstrated in “Three Felonies a Day,” an aggressive prosecutor armed with an elastic federal criminal code can successfully target practically anyone. When courts decline to restrict the reach of vaguely written statutes they effectively give prosecutors the illegitimate, unaccountable power not just to enforce laws but to make them. That power is at issue in the McDonnell case. We should all hope the Court reins in its abuses.


Wendy Kaminer is a lawyer and author.