I have written this new piece for Slate, with the subhead, “If you think the Perry indictment is ridiculous, watch Blagojevich get out of jail and McDonnell go free.” It begins:
Over the weekend, liberal and conservative commentators achieved rare bipartisan consensus in condemning the indictment of Texas Gov. Rick Perry as “unbelievably ridiculous,” legally thin, and potentially unconstitutional. Perry is accused of threatening to veto and then actually vetoing funding for the Travis County district attorney’s office, unless it got rid of its district attorney, who—in an embarrassing incident—pleaded guilty to drunk driving and arguably got off too easily. It’s worth noting that the same outrage expressed over the Perry indictment did not accompany the conviction of former Illinois Gov. Rod Blagojevich for trying to sell Barack Obama’s Senate seat, or the trial of former Virginia Gov. Bob McDonnell and his wife for allegedly taking $165,000 in gifts from a businessman selling snake oil, who was looking to curry political influence with the governor. But a similar problem of drawing the line between illegal conduct and politics as usual may set them both free. And it suggests prosecutors are in a tough position when they see conduct that fails the smell test but might not be illegal.
This seems to be the season for investigations of governors. New Jersey’s Gov. Chris Christie has his “bridgegate.” The U.S. attorney is investigating New York Gov. Andrew Cuomo’s potential interference with the Moreland Commission—a commission he created himself to investigate corruption. State prosecutors in Wisconsin have been investigating Gov. Scott Walker’s involvement in potentially illegal coordination of campaign finances between his political campaign and outside groups. And then, of course, there are McDonnell, Perry, and Blagojevich, as well as Connecticut Gov. John Rowland, who went to jail for graft, and Alabama Gov. Don Siegelman, who went to jail for bribery and fought his conviction (unsuccessfully) all the way to the U.S. Supreme Court. At least the endless prosecutions appear to target both Democrats and Republicans.
But the problem facing prosecutors, in the Perry case and the others noted above, is this: State officials have tremendous power, and many of them abuse that power for personal benefit. But many state officials also engage in unseemly conduct and hardball politics that do not clearly cross the line of illegality. In those cases, as I’ve written in relation to former U.S. Sen. John Edwards, former House Majority Leader Tom DeLay, and now Rick Perry, we run the danger of the criminalization of ordinary politics. And a prosecutor’s desire to make a name for herself, the potential for partisan prosecutions, and the public’s desire to ferret out corruption that it believes to be rampant all push prosecutors into pursuing sometimes novel or dubious legal theories against high public officials. There is very little incentive in the other direction.