Will: Refrain from criminalizing normal political interactions

Democratic politics is always and everywhere a transactional business. Promises are made to secure permission to wield power: If we support you, will you pursue policies we prefer? Vote for me and I will deliver this benefit for you. And for 240 years, American politicians have been attentive to supporters who contribute to those whose agendas they favor.

McDonnell had an unseemly relationship with a Richmond businessman who showered the governor with substantial gifts, loans and perquisites. Virginia law permits state officials to accept gifts, and never during McDonnell’s trial did prosecutors suggest that he had violated state law.

If the businessman hoped that McDonnell would take official government actions benefiting his diet supplement enterprise, he was disappointed. The Supreme Court and other courts have defined an “official act” as the actual exercise of government power. The businessman wanted certain acts — state funding for his firm, a state study to validate his supplement and inclusion of it in Virginia’s health plan. None of these acts occurred.

Nevertheless, prosecutors presented a redefinition of “official act” and the trial judge instructed jurors that they could find an “official act” in behavior that could have some attenuated connection to a potential government decision. An appellate court endorsed this.

‘Official act’ redefined

This case implicates the First Amendment right to seek access to elected officials in order to petition the government. Also, the appellate court’s approval of the prosecutors’ capacious redefinition of an “official act” empowers the executive branch to perform the legislative function of demarcating which “routine political pleasantries” (from the brief of the former state attorneys general) constitute “common political courtesy” and which are “indictable corruption.”

McDonnell will be imprisoned for facilitating a few meetings, in violation of this bedrock principle: Due process is denied when the law does not give due notice of proscribed behavior. Such notice also circumscribes the discretion of overzealous prosecutors, of whom there is no shortage. The tawdry context of this case — McDonnell’s legal but unseemly acceptance of the businessman’s vulgar largesse — probably incited the prosecutors and judge to stretch the law to ensnare an unsympathetic defendant. But the criminalization of normal political interactions is especially ominous when aesthetic considerations expose a person to prosecution for actions inseparable from the business of representative government.

Again, Brandeis: “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.” In this case, without understanding the dynamics of democracy.