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Criminalizing Politics

Prosecuting prominent politicians is always sure to garner a headline or two.

This summer has certainly brought enough such cases to prove the point. Wisconsin’s Gov. Scott Walker faced an inquiry into alleged illegal fundraising. A grand jury indicted Texas Gov. Rick Perry on charges of misusing his power in connection with an Austin district attorney. And Virginia’s former Gov. Bob McDonnell has been a regular fixture of the news cycle for the past month as he and his wife, Maureen McDonnell, stand trial for alleged corruption.

The cases are unconnected, and the charges are varied, but they share a central theme. Each of these prosecutions is an attempt to criminalize what appears to be normal, if not always admirable, political behavior. Since all of the prosecution teams are composed of Democrats and all of their targets happen to be Republicans, it is reasonable to believe that political antagonism, if not a political agenda, is part of the motivation behind the charges. Winning convictions that will stand up on appeal, while preferable, is not always necessary. Sometimes just the headlines will do.

And since prosecutors are almost never penalized for bringing baseless cases, there is no reason to think this behavior will stop any time soon.

Jurors in the McDonnell case return today for closing arguments and may begin deliberations; prosecutors have rested their case. But the case against the former Virginia governor is about as airtight as a corn maze. McDonnell and his wife are accused of taking money from local businessman Jonnie Williams in exchange for public favors, but prosecutors have apparently been unable to cite any way in which the governor effectively used his public office to repay his benefactor. As a booster of Williams’ product, the tobacco-based supplement Anatabloc, McDonnell was a notable failure.

The prosecution argued that the gifts and loans Williams gave McDonnell lined up with the former governor’s “promotion” of the product. Yet McDonnell did not succeed in getting either of Virginia’s flagship universities to study the product’s purported benefits, as Williams had hoped. When questioned, McDonnell forcefully stated that all he did for Williams was to try and get him in touch with people who could evaluate his requests, which were denied; the loans were personal and unrelated, McDonnell insisted.

If all the governor did was ask people to take meetings or tout the supposed benefits of a product made by a Virginia-based company, he was just doing what governors generally do when they go on trade missions, often toting along business leaders who happen to be their political supporters or personal friends.

Not that there is anything admirable in McDonnell’s behavior. Whenever a public official accepts big gifts from private parties, whatever the circumstances, it appears that something shady could be going on even if it isn’t. That’s why most jurisdictions require officials to disclose such gifts while in office and why some prohibit such gifts outright.

But most of Williams’ munificence was directed at McDonnell’s wife, who never held public office. Unless we are prepared to say that wives can have no financial lives independent of those of their husbands - a position we abandoned as a society about 50 years ago - then it is hard to see what public official Williams is meant to have corrupted. “First lady” is an honorific, not a public office.

That this case was worth federal prosecution at all was a huge stretch for President Obama’s Justice Department. Prosecutors argued that McDonnell’s feeble efforts on Williams’ behalf, such as they were, somehow affected interstate commerce on the basis that Williams himself promoted his company across state lines.

If the McDonnell prosecution was a stretch, though, Rick Perry’s indictment is a boatload of Silly Putty.

Perry is accused of exercising his constitutionally granted budgetary veto power to defund a public corruption unit of a district attorney’s office unless its head resigned. The district attorney in question, Rosemary Lehmberg, had been previously arrested on a drunken-driving charge; she pled guilty and was sentenced to 45 days in jail, The New York Times reported. Perry threatened to veto state funding for the public corruption unit unless Lehmberg resigned, and he followed through on his threat when she refused to do so. Grand jurors from Travis County indicted him on two felony counts, charging that he abused his power in fulfilling a promise to put someone he considered unfit to serve in his government out of work. Notably, Travis County’s seat is Austin, a bastion of political blue in otherwise bright red Texas.

A similar prosecution against Kay Bailey Hutchinson, a Republican senator for Texas at the time she was charged, collapsed of its own weight on the first day of trial. That indictment was brought by Lehmberg’s predecessor, Ronnie Earle. The Perry case will probably crumble just as quickly, if it even makes it that far. The real point was to harass and smear Perry in advance of a possible 2016 presidential bid. Perry had previously announced he would step down as governor at the end of his term, and has begun taking steps to raise his profile and to recover from his unsuccessful 2012 campaign.

Then there is the case of Scott Walker. Walker was accused of coordinating illegally with conservative groups in recall elections in 2011 and 2012, but in June, a special prosecutor who looked into the facts could find no evidence of a crime worth charging anyone over. Gregory Peterson, the judge overseeing the investigation, said he found no probable cause of campaign finance violations, halting subpoenas as a result. And in May, a federal judge granted a preliminary injunction to halt the inquiry altogether. The appeal of that decision is currently pending. The Walker case, too, was a product of a takedown attempt by Democrats seeking to nullify the results of elections they lost by going after the real target of those elections.

As matters stand, prosecutors have much to gain and little to lose from bringing cases against public officials from the opposing political party. In the Texas case, at least, it would be interesting to have the state bar association examine the fitness as lawyers of those who bring flimsy legal actions against duly elected public officials, however. The Texas Bar’s own rules have a section on the “special responsibilities of a prosecutor,” the first of which is to “refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause.”

Lawyers are advocates, and we expect them to vigorously promote the positions they represent. But they are also officers of the court. In any jurisdiction, presenting something as a criminal offense when there is no reasonable basis to believe a crime has been committed ought to be, at the very least, a fraud on the court, if not a criminal abuse of prosecutorial discretion. Those who bring such charges waste the courts’ time and deprive the public of the services of officials who we elect. There ought to be consequences for such actions, especially when they form a pattern.

When judges and bar associations begin to sanction such conduct, maybe it will diminish. Until then, we can look forward to more headlines about investigations that ultimately lead nowhere.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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