George Will: The Criminalization of Politics

The impulse to ferret corruption from politics corrupts the criminal justice system when it causes overzealous prosecutors and judges to improvise novel interpretations of the law of bribery. Consider Robert McDonnell’s case.

Virginia’s former Republican governor has been sentenced to prison for actions that he could not have reasonably anticipated would be declared felonies under a dangerous judicial expansion of federal law defining bribery of public officials. Friday the Supreme Court will decide whether to review McDonnell’s conviction.

Compelling reasons for doing so are explained in friend-of-the-court briefs submitted by, among others, 31 current governors; 60 former state attorneys general (six from Virginia filed their own); 13 former federal officials, including two former U.S. attorneys general, and former legal counsels to every president starting with Ronald Reagan; and three law professors from Harvard and the University of Virginia. All agree that McDonnell’s conviction resulted from unreasonably stretching the understanding of quid pro quo corruption — you do X for me, I will do Y for you...

McDonnell had an unseemly relationship with a Richmond businessman who showered the governor with substantial gifts, loans, and perquisites. Virginia law permits state officials to accept gifts, and never during McDonnell’s trial did prosecutors suggest that he had violated state law. 

If the businessman hoped that McDonnell would take official government actions benefiting his diet supplement enterprise, he was disappointed. The Supreme Court and other courts have defined an “official act” as the actual exercise of government power. The businessman wanted certain acts — state funding for his firm, a state study to validate his supplement, and inclusion of it in Virginia’s health plan. None of these acts occurred. (read more)