As I’ve been working on the bribery portion of my forthcoming Examples and Explanations book, I went back and reread Dan Lowenstein’s masterful article,Daniel Lowenstein, When is a Campaign Contribution a Bribe?, in Public and Private Corruption (William C. Heffernan & John Kleing, eds. 2004) and also looked at the recently failed cert. petitions in the Siegelman case (flagged by Rick Pildes, who wrote a brief in the case) and well as the key opinion by well-respected federal judge Myron Thompson in the McGregor case (more from Rick P. on that opinion). I’ve learned that McGregor ended with acquittals all around, which is great news for the defendants but less good news for other defendants who face difficulties in the law in this area. The lack of clarity which Lowenstein brilliantly illustrated in 2004 has only worsened.
It is time for the Court to grant cert. in one of these cases. (The Court denied cert. in Siegelman, and a few people have suggested to me that it was not a good vehicle for exploring these issues because there may have been enough evidence of defendants’ guilt under whatever standard the Court could announce.) But now via BNA comes word of a cert. petition from Kevin Ring, of the Abramoff scandal, raising these issues.I don’t know enough about whether the Ring case is a better vehicle for exploring these issues, but I hope it is.
What’s at stake in these cases is the troubling criminalization of politics, where no one knows where the line is (this is a lot like the IRS 501(c)(4) problem, where not even the IRS knows where the line is, but this time there is criminal liability on the line). Here’s what I wrote on the broader issue in a Slate jurisprudence column last year: “If politics makes for strange bedfellows, so too it seems do political prosecutions.”
It is no wonder then that liberals and conservatives have rallied around these politicians, despite the fact that most wouldn’t win any popularity contests. (Edwards was cheating on his wife while she had breast cancer, and then later lied about it on national television.) Each of these cases, which feature prosecutors relying on novel theories to criminally prosecute prominent political figures, raises two distinct dangers.
First, if the law is murky, prosecutors with a political agenda could use criminal prosecutions to take down their political enemies. Siegelman, Edwards, and DeLay each claimed that the prosecutions against them were politically motivated: Siegelman and Edwards blame Bush administration Justice Department prosecutors, while DeLay blames former Travis County District Attorney Ronnie Earle, a Democrat.
We don’t know whether these prosecutions were politically motivated or not, and of course each of these defendants has every incentive to make such claims. But the point is that when judges allow prosecutors to rely on novel legal theories in these sorts of cases, they open up the possibility of politically motivated prosecutions. Better to leave the criminal cases to clear violations of the law, such as Rep. Randy “Duke” Cunningham’s yacht bribe or Rep. William Jefferson’s $10,000 stash hidden in his freezer. If prosecutors can’t produce clear-cut charges, politicians and their campaigns should only face the potential for civil liability.
Second, even if prosecutors are well-meaning and looking out solely for the public interest, there’s a fundamental unfairness in subjecting politicians to criminal liability for uncertain violations of campaign finance law. The threat of criminal liability can ruin a political career. Look at the overreaching by federal prosecutors in the trial of Ted Stevens; the Justice Department’s attorneys were so hungry to get the Republican senator from Alaska, they withheld key exculpatory evidence from the defense.