By Andrew P. Miller and Anthony F. Troy
Following the April 27 hearing at the U.S. Supreme Court in which the justices appeared to side with former Virginia Gov. Bob McDonnell, suggesting that he was wrongly convicted for corruption, some opinion commentators and pundits went into overdrive. “The Supreme Court is about to legalize corruption,” they shrieked.
While this “court of public opinion” has tried, convicted and placed McDonnell on political death row already, it would do well for these pundits to put aside their political bias and honestly assess the facts and the law in order to consider what this case means for all Americans.
The heart of the issue is this: Our federal corruption laws are currently so vague that they can be misapplied to prosecute any donor or official. However, federal corruption occurs only when officials abuse the official governmental power they wield — either through performing an official governmental action or attempting to influence another official to do the same. McDonnell did neither. Yes, like virtually all elected officials, he accepted gifts and loans from a donor, which was perfectly legal in Virginia. And yes, his office extended normal courtesies to that donor just as he and all governors do for many hundreds of other constituents during their terms. That said, without exercising official governmental action or attempting to influence another official to do so in exchange, there is no crime committed. The donor here got not a dime of state support.
McDonnell’s innocence was urged in an unprecedented 13 amicus briefs filed with the court supporting him, signed by upward of 300 of the country’s top legal minds, legal scholars, bipartisan political figures, business leaders, advocacy groups, civil rights leaders, and other policymakers. The signers include former White House counsel for every president from Reagan to Obama, 83 former attorneys general from 46 states and both political parties, Clinton-appointed former federal judge Nancy Gertner at Harvard and U.Va. law professors, 33 current governors, more than half the Virginia state legislature, and many more.
Of the specific brief filed by former White House counsel, Chief Justice John Roberts remarked, “I think it’s extraordinary that those people agree on anything. But to agree on something as sensitive as this and to be willing to put their names on something that says this cannot be prosecuted conduct, I think is extraordinary.”
During the oral argument, Justice Stephen Breyer and his colleagues struggled to define what exactly constitutes corruption and what does not. He stated that the law as written has no “limiting principle,” thereby giving federal prosecutors, who are “virtually uncontrollable,” too much power.
The pundits fail to understand that, if the statutes that were applied to McDonnell — and former Alabama Democratic governor Don Siegelman before him — are allowed to stand, this will only further enable federal prosecutors to politicize the criminal justice system. Any donor who buys lunch for a politician or any government employee who performs a routine administrative act could be charged by a federal prosecutor with a partisan agenda. This cannot be the law in America.
While true corruption involving our elected leaders needs to be rooted out, we cannot allow justice to be removed from the equation and public servants to be placed at the mercy of prosecutors who then seek to have judges grant instructions to juries which misstate the intent and scope of federal law.
The government said it wanted the conviction of McDonnell to send a message. However, Justice Breyer responded that he was not interested in sending messages, but was interested in defining the structure of government. He expressed serious concerns that upholding McDonnell’s conviction could criminalize something that happens “every day of the week.” This case presents “as fundamental a real separation of powers problem as I’ve seen,” Breyer stated.
If the “court of public opinion” continues to disregard the actual facts and important legal issues in the McDonnell case, perhaps it will now also wish to consider the future ramifications on their fellow citizens and elected officials, should Governor McDonnell’s conviction be allowed to stand.