- - Sunday, May 17, 2015

ANALYSIS/OPINION:

The federal government should not put a person in prison for doing something that even trained lawyers do not know is illegal. Yet that is precisely what the Department of Justice is trying to do by prosecuting former Virginia Gov. Robert F. McDonnell. In order to prosecute McDonnell for his admittedly poor judgment, the Justice Department invented an unprecedented construction of the vague federal corruption laws that would — if applied consistently — mean that every politician who trades his time for meals, campaign contributions or complimentary travel is also a felon.

As attorney general of Virginia, I learned much from that experience about law enforcement. My perception was confirmed that basic justice requires making the law clear to people before prosecuting them for their conduct. It is fundamental to American law that prosecutors not invent crimes to prosecute and imprison anyone who crosses their path or anyone whom they can further their careers by prosecuting.

That is why I joined an amicus brief filed by all six eligible former Virginia attorneys general, both Democratic and Republican, in support of McDonnell’s appeal of his convictions. (A similar bipartisan brief, which I helped organize, was signed by 44 former non-Virginia attorneys general.) While his conduct may appear unseemly, it was not, and is not, prohibited by any federal law. He therefore did not commit a crime, and his convictions should be overturned.

Should the courts conclude that the vague federal laws underlying Mr. McDonnell’s convictions stretch as far as the Justice Department claims, it would put attorneys general in an extremely difficult position. It is the job of an attorney general to advise his or her governor and fellow public officials on what the law prohibits and what it permits. If every meeting, every emailed question, and every party invitation extended to donors is a potential felony, current and future attorneys general are going to face an impossible task in advising state and local officials on how to act.

Leaving everyone uncertain about what is acceptable does not benefit anyone besides overzealous prosecutors trying to build careers by prosecuting prominent persons elected by the voters. Moreover, using the sledgehammer of federal felonies to regulate everyday political conduct such as accepting gifts or arranging a meeting would be dangerous for democracy. Running for office and staying in office means asking people for money. Elected officials constantly have to solicit donations and contributions from a wide range of people, some of whom are looking for more than just a handshake. That is simply part of being an elected official in the United States, where election campaigns are funded by private contributions rather than tax dollars.

If officials commit felonies at every fundraiser that provides access to them in exchange for campaign contributions (which is every fundraiser) that means all elected official are felons. And if every elected official is a felon, then we are no better than Stalin-era Russia, where prosecutors famously declared: “Give me a man and I will find the crime.” That is not how American justice is supposed to work. Voters — not prosecutors — are supposed to pick our political leaders, who should only be charged for committing actual crimes.

Expanding vague corruption laws to prosecute state officials also treads severely on state sovereignty. If the voters think Virginia officials should not accept gifts, then her General Assembly should ban gifts. That is the prerogative of a state in our federalist system. The fact that the Commonwealth had not banned the gifts in controversy did not give license to Justice Department to distort federal corruption laws into doing so anyway.

Twisting those laws in the manner the Justice Department did here — where the department has theorized that every meeting an elected official arranges is an official action that cannot be furnished if there are gifts or contributions — conflicts directly with political reality. Almost all meetings for donors are not rewards for donors; rather they are polite mechanisms for channeling donor requests. Anyone who has worked with elected officials or been an elected official is familiar with routine meetings in which the official or some staffer listens to an important supporter’s concerns but then does nothing else. That is just part of how politics works and how elected officials — all of whom depend on political support — maintain relationships while discharging their official duties in a responsible and evenhanded way.

In short, I support McDonnell’s appeal because his conviction represents a drastic, congressionally unsanctioned expansion of federal criminal law. Basing federal criminal prosecutions on the routine political courtesies at the heart of this case would extend the federal government’s reach far too deeply into state political life. I trust the 4th U.S. Circuit Court of Appeals will agree.

Andrew P. Miller, a Democrat, is a former Virginia attorney general.


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