Crime, Free Speech, Politics

The Criminalization Of Politics: Is It Happening, And Is It A Problem?

Sure, politics is an icky business -- but should it be criminal?

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As the trial of former New York State Assembly speaker Sheldon Silver enters its third week, here’s a topical question: is ordinary politics being criminalized by overzealous prosecutors? And if so, is that a problem? Sure, politics is a dirty business — but might problems arise from normal government relations being turned into fodder for criminal indictments?

These and other topics got tackled by an insightful panel at the Federalist Society’s 2015 National Lawyers Convention, “Free Speech, Anti-Corruption, and the Criminalization of Government Affairs.” It featured the following speakers:

Looking at one specific criminal statute, former federal prosecutor Edward Kang argued that prosecutors and judges have adopted an overly broad definition of “official act” for purposes of the federal bribery statute. Kang focused on the prosecution of former Virginia governor Bob McDonnell, who got convicted of obtaining property under color of official right (among other crimes). Kang argued that the actions that served as the basis for McDonnell’s conviction — making introductions, speaking at events — were standard political courtesies, “official acts” only in that they were done by a public official. McDonnell and his wife received a laundry list of lavish gifts from businessman Jonnie Williams, to be sure — but federal law requires an “official act,” not just expensive presents.

Another former federal prosecutor on the panel, Peter Zeidenberg, echoed some of Kang’s concerns. When he worked as a homicide prosecutor in D.C., he and his colleagues knew a crime was committed; it was just a matter of figuring out who did it and how. But when he worked as a public-integrity prosecutor, the key question often was whether a crime was even committed. Zeidenberg confessed to feeling uncomfortable with some of the cases his office investigated, where the evidence of corruption seemed “paltry” or “small potatoes.”

As an example of a wrong-headed prosecution, Zeidenberg mentioned the case of Kevin Ring, who got convicted “after taking clients out to dinners and sporting events — in other words, lobbying.” Zeidenberg much preferred prosecutions like the one against former congressman William J. Jefferson, who (in)famously stored $90,000 in tainted money in his freezer — a clear-cut case of wrongdoing.

All that said, Zeidenberg disagreed with Kang on the McDonnell case, which he viewed as within the heartland of public corruption. After Governor McDonnell and his wife helped themselves to extravagant gifts from a businessman who wanted their help — not an old friend, but someone they came to know only after McDonnell’s election — the jury had an adequate basis for finding that McDonnell improperly used his public office to promote Williams’s business. As Zeidenberg colorfully put it, “Put a Rod Blagojevich wig on Bob McDonnell, and their cases look quite similar: garden-variety corruption.”

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Professor Eugene Volokh trained his fire on a different prosecution of a prominent politician: the indictment of Texas Governor Rick Perry. Walking through the elements of the various statutes, Professor Volokh expressed grave doubt as to the applicability of the laws in question to Perry’s conduct, arguing that ordinary political hardball should not be criminally punishable as coercion of a public official — a conclusion that the Texas courts also reached, leading them to dismiss the charge for coercion of a public official (an abuse-of-power charge remains pending).

What should be done to rein in overreaching prosecutors? It’s not an easy problem to solve. Removing or reducing immunity for prosecutors could lead to overly timid prosecutors, according to Professor Volokh. Peter Zeidenberg argued that the Justice Department’s Office of Professional Responsibility must be strengthened (although critics of OPR would probably argue that it has been captured by the constituency it’s supposed to regulate).

The panelists seemed to agree that something must be done to curb the criminalization of politics. Summing up his view that we can’t just rely on prosecutorial discretion to avoid abuses, Professor Volokh offered up the best quip of the panel: “I trust prosecutors like I trust normal human beings: to some extent, but not much further.”

Earlier: Ten Years Of The Roberts Court

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Free Speech, Anti-Corruption, and the Criminalization of Government Affairs [Federalist Society via YouTube]
2015 National Lawyers Convention Schedule [Federalist Society for Law & Public Policy Studies]
Issues That Could Arise in 3rd Week of Sheldon Silver’s Trial [New York Times]

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