The face of American political corruption might be about to change
Tom DeLay. John Edwards. Rick Perry. Robert Menendez.
Like these politicians, Robert McDonnell is not your average defendant in the American criminal justice system. Nor is the former governor of Virginia the easiest man to root for, after receiving more than $177,000 in luxury items, vacations, loans, and other largess from a Virginia businessman that led to a conviction on federal corruption charges last year.
But he does make for an intriguing portrait of the state of political corruption in the United States.聽
This week, Mr. McDonnell鈥檚 legal team told the US Supreme Court that he, like those other men, is a victim. He says he has run afoul of a 鈥渃riminalization of politics鈥� 鈥� a growing trend wherein overzealous (and perhaps ambitious) prosecutors use vague or overbroad corruption laws to levy charges for what could be construed as everyday political activity.
The prosecutors, meanwhile, suggest that allowing McDonnell to walk free would lead to unchecked political corruption. At a time when the political system is increasingly influenced by megadonors, the stakes are growing, they add.
That makes the Supreme Court case, to be decided later this spring, a crucial test: Where, exactly, does the nation鈥檚 highest court want to set the bar for what is corruption and what is not?聽
Comments from the court and experts suggest that many think the pendulum has swung too far toward aggressive prosecutors and needs to be recalibrated. The court appears poised to do that. How far it will go is the question.
鈥淧eople sort of accept that our political system as it鈥檚 currently set up anticipates a certain amount of low-grade corruption,鈥� writes Matthew Kaiser, an expert on white-collar criminal defense, in an e-mail to the Monitor. For example, 鈥渆very politician spends a lot of time asking for money and doing things in return for that money.鈥�
鈥淭hat situation may be troubling,鈥� he adds, 鈥渂ut when it ought to be a crime is very hard to identify in a principled way.鈥�
Recent cases suggest that prosecutors might have been overreaching. The prosecutions of Mr. Delay, a former House majority leader; Mr. Perry, a former governor of Texas; and Mr. Edwards, a former Democratic senator and vice presidential candidate; all were either unsuccessful or later overturned.
McDonnell is hoping the court will decide in a similar fashion. While he is not disputing that he received the gifts, he is disputing whether his largely passive responses 鈥� including arranging meetings with state officials for the businessman, Jonnie R. Williams Sr., and allowing him to throw a luncheon at the governor鈥檚 mansion to launch a product 鈥� qualified as corruption under federal law. In a聽quid pro quo聽(鈥渢his for that鈥�) sense, there was nothing illegal about what he offered Mr. Williams, McDonnell argues.
The concern is that, if the court rules for McDonnell, his behavior will become more commonplace.聽
鈥淭he implication would be that that subtle corruption is going to be more difficult to prove,鈥� says Randall Eliason, a professor at George Washington University Law School and an expert on public corruption. 鈥淎nything that makes proving corruption cases more difficult, the corollary of that is it makes it easier for the corruption to take place.鈥�
On the flip side, a decision upholding McDonnell鈥檚 conviction 鈥� which could also result from a 4-to-4 tie 鈥� could act as a stimulant for prosecutors.聽
鈥淭here鈥檚 this concern about the criminalization of politics,鈥� says Richard Hasen, a professor at the University of California, Irvine School of Law.聽鈥淚f the [federal anticorruption] laws are very vague, it gives room for overzealous prosecutors to bring these cases to make a name for themselves.鈥�
Five White House counsels have signed an聽聽in support of McDonnell.
For the White House lawyers 鈥渢o 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,鈥� said Chief Justice John Roberts during oral arguments聽Wednesday.
But a broad ruling for McDonnell could leave the interpretations of federal corruption laws ambiguous.
鈥淢y problem is 鈥� how do we write those [laws] so that they do catch people who are doing the dishonest thing without, as I鈥檝e said five times, allowing the government the freedom to go and do these ridiculous cases,鈥� said Justice Stephen Breyer.
For this reason, experts are anticipating a ruling in favor of McDonnell that clarifies anticorruption laws without giving room for 鈥減ay to play鈥� politics to flourish.
鈥淭he question is not if [McDonnell] wins, but how he might win 鈥� [and] whether the court says anything broadly about whether it鈥檚 permissible under this law to sell access for money,鈥� says Professor Hasen. 鈥淚鈥檓 guessing the court will find way to side with McDonnell without going that far.鈥�
The ultimate outcome could narrow federal anticorruption laws.
A narrower definition of corruption is 鈥減robably going to let some bad guys get away,鈥� said William Haun, a private attorney representing business and political interests that filed an amicus brief supporting McDonnell, in a conference call聽Wednesday. 鈥淭he question is: Should that be acceptable? And I would say that is acceptable.鈥�
鈥淭he idea that people would be self-interested and self-aggrandizing with the political process is not exactly a new insight,鈥� he said, 鈥渁nd the answer isn鈥檛 to send everyone to prison for this.鈥�
Justice Breyer seemed to agree 鈥� to a point.聽
Any revised definitions of corruption 鈥渨ill leave some dishonest conduct unprosecuted. They won't be perfect,鈥� he said.
But he added, 鈥淭hey will put some politicians at risk,鈥� too.
An immediate beneficiary could be Senator Menendez (D) of New Jersey, who has聽聽on federal corruption charges. Prosecutors allege that Menendez accepted nearly $1 million in contributions and gifts from Saloman Melgen, a Florida eye doctor, in exchange for political favors. Menendez has said the two men have been friends for decades and were only helping each other.
Beyond that, the McDonnell decision could represent a 鈥渟ea change,鈥� writes Mr. Kaiser, the white-collar criminal defense expert at Kaiser, LeGrand & Dillon in Washington.
The 鈥渒ind of deference prosecutors get from federal judges鈥� in corruption cases could shrink dramatically.
[Editor's note: The original incorrectly identified Senator Menendez's state and what he is alleged to have received from Mr. Melgen.闭听
