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McDonnell should still do time

The Supreme Court can find him guilty without criminalizing ordinary political conduct

This past Wednesday, the U.S. Supreme Court heard arguments in the case against former Virginia Gov. Bob McDonnell, who was there to observe the court spar over the true nature of his transgressions. The debate reveals a fundamental tension between what should be considered dishonest conduct and what should be subject to criminal prosecution. Both the justices and Virginians seem to agree: McDonnell’s conduct was dishonest, disreputable and inexcusable. While we believe McDonnell should serve time for his crime, whether conduct in the same vein should always be subject to prosecution is perhaps a trickier matter than McDonnell’s individual offense.

The disgracefulness of McDonnell’s actions should by now be patently clear. In 2014 a federal jury convicted McDonnell of extortion and fraud, both of which were the result of his relationship with Jonnie R. Williams Sr., who had wanted the state to provide assistance in marketing Anatabloc, a dietary supplement produced by his own company. The gifts which Williams showered on McDonnell (and his wife) amounted to more than $170,000 in cash and luxury goods; Williams himself testified that he provided the gifts with the expectation that McDonnell would “continue to help… move [his] product forward in Virginia.” That such behavior does not even seem to raise eyebrows among those involved speaks volumes about the basic failings of conscience within our current political system.

McDonnell’s lawyers argue the governor did not perform “official actions” on account of the fact that he did not exercise nor threaten to exercise “actual government power.” Instead, his actions were routine, such as “arranging meetings… [and] attending events.” That distinction, however, makes increasingly less sense in a society in which political influence is gathered not through outright quid pro quo but through the subtle construction of relationships and networks.

Two points raised during the Supreme Court’s oral argument are worth considering. The first, from Chief Justice Roberts, concerned an amicus brief filed jointly by former White House counsels under each president from Reagan to Obama. It argues if McDonnell’s conviction were to be upheld, “it [would] cripple the ability of elected officials to fulfill their role in our representative democracy.” The brief suggests that to uphold McDonnell’s conviction would be to prohibit conduct that is (for better or worse) so regular, so ingrained in the fabric of governance that its proscription would stifle the day-to-day operation of government itself. The fact that such a variety of individuals could agree on such a strong point, no less ascribe their names to a document claiming conduct in the same vein as McDonnell’s should not be prosecutable, is — as Roberts himself puts it — “extraordinary.”

The second problem, in the words of Justice Stephen Breyer, is a “separation of powers problem.” A ruling upholding McDonnell’s conviction, he argues, would allow the Department of Justice to become “the ultimate arbiter of how public officials are behaving in the United States — State, local, and national.” Valid though the concern may be, it does not in itself justify overturning McDonnell’s conviction. The court can surely find a way to affirm the egregiousness of McDonnell’s actions without setting a broad precedent that could harm politicians who are acting in good faith. We only ask that the court makes clear it does not intend to provide constitutional protection for behavior that weakens the integrity of government.

In the world of special interests, the legal distinction between “official acts” and routine political activities such as arranging meetings has become increasingly indefensible. A public official like McDonnell can exert his influence beyond the formal duties of his office, which is exactly what he did in this case; he should, therefore, be held accountable. That neither he, nor his wife, nor the beneficiaries themselves felt their behavior was improper is unfortunate enough, but perhaps that fact in itself is all one needs to know to comprehend the disheartening state to which our politics has fallen.

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