OPINION:
The decision by the U.S. Supreme Court to vacate the public-corruption conviction of Bob McDonnell, the former governor of Virginia, deserves the applause of everyone. Just as there is no Republican or Democratic way to put out a fire, there should be no Republican or Democratic way to protect the fundamental rights of everyone.
Mr. McDonnell and his wife, Maureen, were the prey of federal prosecutors who were looking for a conviction of someone, and the McDonnells were conveniently at hand. The former governor had a limited understanding of ethics — a rich constituent who showers expensive wristwatches and luxury vacations on a public official will eventually expect something nice in return, or so it will look to many. How something looks is indeed important. But ethical blindness is not a crime. This is something that zealous prosecutors do not always understand.
There was no smoking gun nor other evidence that the governor did more than set up a meeting or two with state officials, which he might well have done for others, too, and when the constituent didn’t make much of an impression on the state officials there was no evidence that the governor tried to intervene.
The gifts to the governor, while legal at the time under Virginia law, looked suspicious and the prosecutors won a conviction without evidence of an actual quid pro quo. When the conviction was upheld on appeal, several past state attorneys general and lawyers who had served in previous presidential administrations, Democrats and Republicans, joined the McDonnell lawyers on the appeal to the U.S. Supreme Court.
The justices were wary from the beginning of what was clearly “prosecutorial overreach.” Justice Stephen Breyer, no conservative, told the government’s lawyer during oral arguments that his interpretation of the meaning of the statute, under which the prosecution was brought, amounted to “a recipe for giving the Department of Justice and prosecutors enormous power over elected officials.” That’s exactly what the Justice Department wants.
The effort to criminalize politics has been growing apace; it’s always tempting to certain partisans to use the government to send someone with whom the government disagrees to jail. Some zealous prosecutors see a crime every time they see an elected official from the other party doing something for a constituent. Prosecutors with such a nose for smoke should find a fire before they gallop off to find a rope.
Bribery is a crime and should be treated as a crime. Prosecutors have a duty to bring charges against public officials when they have authentic evidence of wrongdoing. But public officials have rights, too. Writing for the unanimous court, (which has a relaxed view of gifts of trips and junkets the justices accept during its summer recess), Chief Justice John Roberts said that if the court had let the conviction stand it would have made doing his job exceedingly difficult for a governor or elected official. Conscientious governors arrange meetings for constituents all the time, call or write other officials on their behalf, and include them in government events. Justice Roberts wrote that the basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns — whether the union official worried about a factory closing or a resident wanting to know why five days were required to restore electricity to his street after a storm.
“The government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past, or the homeowners invited the official to join them on their annual outing to the ballgame,” he wrote. “Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.” The other justices agreed, and handed down a correct and important decision.
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