White-Collar Crime

Bob McDonnell Is Responsible For A Lowered Crime Rate

The Supreme Court decides that at least one person gets to avoid prison.

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640px-Bob_McDonnell_by_Gage_SkidmoreThere are fewer criminals in America than there were on Monday morning.

As the day broke on Monday morning, the concern that you may be a criminal for doing routine work as an elected official was — as the Supreme Court said — “substantial.” Thanks to the Court’s ruling in United States v. McDonnell, it is now not.

Former Virginia Governor Bob McDonnell did a number of things for Johnnie Williams, a man who had given McDonnell and his family gifts. What McDonnell did was set up meetings, contact other government officials, promote Williams’s product, and host events for Williams.

The question is whether these were “official acts” such that they fall within the scope of federal bribery laws. None were related to proposing legislation, issuing an executive order, or exercising an executive branch official’s discretion in enforcing the law. They were, instead, the kind of informal use of the trappings of office that public officials use every day in countless ways.

Here’s how the Supreme Court described it:

[C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that pub­lic officials will hear from their constituents and act ap­propriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood 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. 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.

In the end, the Supreme Court held, unanimously, that an “official act” is:

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a decision or action on a “question, matter, cause, suit, proceeding or controversy. The “question, matter, cause, suit, proceeding or contro­versy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so.

Public officials who use the soft influence of their office to help a donor are now not violating the law.

The Washington Post has said that this will make prosecutions of government officials impossible. Here’s the crux of Chris Cillizza’s complaint:

[Prosecutions] of a politician voting a certain way in exchange for campaign contributions from an individual or group of allied interests almost never works. How can you prove that the politician wasn’t acting in what he believed was the best interests of his state and not at the behest of campaign donors? You can’t

Fair enough, but is that bad? Do we want Hillary Clinton to be prosecuted because she took money from pro-choice voters then opposed restrictions of access to abortion? Should Bush II — or any other modern president — be prosecuted for wanting to increase military spending after taking money from defense contractors? Aside from Abscam and the introduction of legislation solely to benefit one person — like the private immigration bills going on in that set of cases — why should a public official be threatened with prison for doing his or her job?

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As a result of McDonnell, the crime rate is down — fewer of our fellow Americans are criminals.

If we lived in a world where the only crimes were malum in se — things that are bad regardless of whether they are illegal — a drop in the crime rate would be celebrated by everyone.

But we don’t. Twenty-first century American criminal law is a malum prohibitum world — things are illegal not because they’re bad but because they are decreed to be illegal.

When the government pushes for more criminal laws or for a broader expansion of existing law, it is really pushing to be able to call more Americans criminals. When the Supreme Court reduces the number of criminals in our country — as it did in McDonnell — DOJ doesn’t celebrate, it laments.

There are a lot of reasons for this. If you’re a prosecutor convinced of the righteousness of your work — and righteousness seems to be something DOJ often hires for — you’re not likely to really believe in the malum prohibitum/malum in se distinction. And people like power — especially in America and especially in American government. Fewer criminal laws means less power for prosecutors.

One thing that I think is not in play — and perhaps should be — is whether prosecutors and cops should lose their jobs when the crime rate drops.

In the Netherlands, the crime rate is so low that they have to close many of their prisons. Is that even thinkable in this country? If we were to reduce our prison population so that our prisons weren’t just overcrowded but actually undercrowded, would we shutter some of our prisons and lay off law enforcement. I can’t imagine we would; we would simply find more people to cage.

Though it now appears unlikely that one of them will be the former governor of Virginia.

Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is mkaiser@kaiserdillon.com He’d love to hear from you if you’re inclined to say something nice.

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