The Continuing Need for Supreme Court Clarification of the Line Between Campaign Contributions, Legitimate Political Activity, and Bribes

The well-known federal district judge, Myron Thompson, recently finished presiding over one of the largest and most important recent trials in which the Department of Justice’s Public Integrity Section sought to convict numerous state legislators and campaign contributors of federal bribery based on campaign contributions. Judge Thompson then issued yesterday a 33-page opinion, as Rick Hasen noted, in which he showed how complex and confusing current law is regarding the boundary between legitimate contributions and criminal bribes; after working through this maze, he then explained why he had decided the particular jury instructions he gave were his best effort to sort through this body of law. This extensive and thoughtful opinion is significant for two reasons.

First, Judge Thompson’s opinion concludes with this line, which reflects a plea from lower court judges (and many others) for Supreme Court intervention to clarify the law in this important area: “Ultimately, the Supreme Court needs to address this issue and provide guidance to lower courts, prosecutors, politicians, donors, and the general public.” Coming from a judge who has just presided over a major case involving these issues, that’s a powerful statement about the legal confusion that exists in an area of such significance to the democratic process. This statement makes it all the more disappointing that the Supreme Court, just a month ago, denied certiorari in the most significant recent case that raised exactly these issues: the criminal conviction of former Governor Siegelman, of Alabama. Indeed, if Judge Thompson’s opinion and plea for guidance from lower court judges had been issued while Siegelman’s petition had still been pending, one wonders whether this confirmation of the need for Supreme Court clarification would have been enough to tip the scales and push the Supreme Court to have taken the Siegelman case. (Full disclosure: I filed an amicus brief in support of Siegelman’s cert. petition).

Second, the case over which Judge Thompson presided has gotten far less national attention than it warrants. The case, known as McGregor, involves another dramatic failure of the Department of Justice, particularly the Public Integrity Section, to use federal criminal laws to prosecute what DOJ sees as political corruption. But in addition, the facts are particularly stunning. Here is just a quick sampler: the DOJ actions might well have tipped partisan control of one chamber of the Alabama legislature from one party to the other, even though all the defendants tried were acquitted; the DOJ intervened to help block a piece of pending legislation, because of the DOJ view that the legislation was tainted by bribery (even though the jury concluded otherwise); the District Court found, as a matter of fact, that the state Republican Party, for reasons the District Court characterized as “racist,” had used the DOJ to go after the Democratic Party; and yet the jury completely rejected DOJ’s case. The DOJ’s failed prosecutions of John Edwards and Ted Stevens have gotten far more national attention, but this massive and failed Alabama case illustrates the profound consequences to state and local politics that can result from DOJ criminal prosecution of legislative action at the murky boundary between legitimate campaign contributions and bribery. A brief summary of the facts in the McGregor case can be found in the reply brief Siegelman’s lawyer, Sam Heldman, filed in the Supreme Court, here; Heldman was also one of the lawyers for some defendants in McGregor.