Earlier this month, the ongoing saga of the bribery charges against former Virginia Governor Bob McDonnell came to an end—not with a bang but a whimper—when the U.S. Department of Justice announced that it would not seek a re-trial in the aftermath of the Supreme Court’s decision to vacate McDonnell’s original conviction. Given that we’ve already had plenty of discussion of the McDonnell case on GAB (including commentary on the Supreme Court’s decision here and here), I wasn’t planning to say more about this.
But then I read Frank Vogl’s blog post on The Globalist. Mr. Vogl’s view is that the DOJ’s decision shows that, with respect to corruption, it’s now the case that “[a]nything goes in America, third-world style” and that “[t]he United States, once an admirable leader on combatting political corruption, has now fallen into line with the lax standards of business-political relationships that pervade many other countries.” (He later refers to the U.S. “a stinking city on the Hill.”) Mr. Vogl also declares that the “core message” of the DOJ’s decision not to re-try McDonnell is that the DOJ has “accepted an increasingly narrow definition of corruption,” and he further insinuates that Hillary Clinton and the mainstream Democratic Party (as well as the Republican Party) are “content to accept money in politics in all its forms.”
This is histrionic nonsense. The core arguments are so obviously flawed that at first I didn’t think it was worth writing a rebuttal. But Mr. Vogl is an influential voice in the world of anticorruption advocacy, given that he’s one of the 852 co-founders of Transparency International. (OK, OK, that’s an exaggeration. But if I had a quarter for every person I’ve heard claim to have been one of the founders of TI, I’d be able to buy myself a Grande Frappuccino at my local Starbucks, maybe even a Venti.) So I thought it would be worthwhile to explain why I had such a negative reaction to his piece. Here goes:
- First of all, it’s wrong to suggest that the U.S. DOJ is the main culprit here. The DOJ has been quite aggressive in going after political corruption in the U.S. In the McDonnell case in particular, the DOJ tried hard to win. True, the DOJ decided not to pursue a re-trial after the Supreme Court defeat, even though the Supreme Court’s decision technically left that door open. But this is unsurprising. Yes, the DOJ often does re-prosecute when it loses a significant case due to a procedural error at trial. But that’s not the norm in cases like this one, where the Supreme Court made clear that the government’s interpretation of the law was faulty. Now, maybe the reasons the DOJ didn’t seek retrial aren’t good ones; maybe the DOJ gave up too easily. But maybe there are some sound reasons for the DOJ’s choice. The DOJ’s odds of winning the second time around may be diminished in a case like this, both because the Supreme Court did indeed narrow the scope of the law, making the case harder to prove, and because the defense team will have an easier time finding ways to undermine the prosecution’s case after having seen how things played out the first time. Furthermore, the potential cost to the DOJ of a loss is higher: The general public (and political officials) may not fully understand the legal intricacies of the case, and if the DOJ loses a second time, it could suffer a much more serious blow to its credibility, and give greater ammunition to those who want to portray DOJ corruption prosecutions as political witch hunts. So, although many of us (me included) were holding out hope that the DOJ would re-prosecute McDowell, it’s unfair to say that this decision sends some general message that the DOJ no longer cares about corruption. Indeed, to suggest (as Mr. Vogl does) that the DOJ’s decision not to re-prosecute means the DOJ now thinks that what McDonnell did was just fine, and won’t really take a hard line on corruption in the future, is not only obtuse, but also insulting to the DOJ prosecutors who work on these cases and who—as Mr. Vogl notes—are currently prosecuting other cases, such as those of Senator Bob Menendez and Speaker Sheldon Silver. Yes, there’s a lot to complain about with respect to the McDonnell case, but the focus should be on the Supreme Court’s decision, not the DOJ’s decision not to re-prosecute.
- This brings us to the Supreme Court’s decision in McDonnell, which Mr. Vogl mischaracterizes. I’m on record as someone who thought the conviction should have been affirmed. And I thought that if the Court had accepted the legal theories propounded by McDonnell’s most aggressive supporters, it would have been indeed been a disastrous outcome—one that would have effectively legalized a wide swath of what we ought to consider criminal bribery. But the Supreme Court’s decision in McDonnell actually rested on a narrower ground: a flawed (allegedly over-broad) jury instruction. Contrary to what Mr. Vogl asserts, the Supreme Court did not conclude that McDonnell “did nothing wrong” when he accepted gifts from a businessman in exchange for favorable government treatment. Indeed, the Court went out of its way to say that if the prosecution could prove that this is in fact what happened, a conviction would be proper. The Court’s opinion also made clear that—again contrary to Mr. Vogel’s assertion that the quid pro quo must be “explicit”—that the improper agreement could be established by sufficiently persuasive circumstantial evidence. The problem, according to the Supreme Court, was that the instructions that the trial court gave the jury suggested that the jury could return a conviction even if the jury didn’t believe that McDonnell had actually done or promised any official government action in exchange for these gifts, so long as the government proved the McDonnell did other things—like arrange meetings or make introductions—that the Supreme Court concluded were not, standing alone, “official acts.” Now, I disagreed with the Supreme Court on the meaning of “officials acts,” and on the alleged inadequacy of the jury instructions. I was also deeply troubled by some of the very broad language the Court used–language that to me suggested an insufficient concern with the interest in fighting corruption, and an insufficient willingness to presume inherent pressure in interactions between chief executives and their subordinates. But it’s important to be clear regarding what the McDonnell opinion did and didn’t say, and Mr. Vogl simply gets this wrong. Yes, we should criticize the McDonnell decision, but we should be accurate about what we’re criticizing.
- Third, Mr. Vogl merges the criticisms of McDonnell with a more general critique of money in U.S. politics, and in particular the U.S. Supreme Court’s controversial decision in Citizens United, which held that corporations could spend money from the corporation’s general treasury advocating the election or defeat of a candidate for political office. I’m not a fan of Citizens United, though I think the case is much harder than do many people with whom I otherwise align politically and jurisprudentially. (I also find the oft-repeated empirical claim that the decision, in Mr. Vogl’s words, “open[ed] the floodgates to corporate financing of elections” simplistic and ill-informed. There was plenty of corporate money in elections before Citizens United, and while the impact of the decision is still uncertain, it doesn’t seem like the it has had that much of an impact on corporate political expenditures, election outcomes, or public policy outcomes.) But the more important point here is that this debate doesn’t actually have much to do with the McDonnell decision, much less with the DOJ’s decision not to seek re-prosecution. To suggest, as Mr. Vogl does, that support for the decision not to re-prosecute means support for Citizens United and unlimited money in politics generally is not only illogical, but irresponsible. Indeed, perhaps the most offensive part of Mr. Vogl’s post is his insinuation that Hillary Clinton supports “money in politics in all its forms.” How do we know this? Because the current Virginia Governor (identified ominously as a “close friend of the Clintons,” a classic guilt-by-association move) voiced support for the DOJ’s decision not to re-try Bob McDonnell. Yet Secretary Clinton’s campaign has called for overturning Citizens United! And lots of other members of the Democratic Party establishment (and a few members of the Republican establishment as well) also believe money in politics is a big problem. Of course, it’s hard to do anything about it. But the suggestion that all mainstream U.S. politicians “are content to accept money in politics in all its forms” is empirically false, and certainly not something that could be demonstrated by the fact that one political figure voiced opposition to the retrial of one defendant.
- This may be a lesser point, but I feel like I should throw it in too: Mr. Vogl seems to display either contempt for, or misunderstanding of, basic principles of the rule of law when he laments the fact that U.S. courts will deem legal actions by politicians that “look wrong [and] smell wrong.” Look, corruption is a huge problem and I think that the U.S. should be doing more to fight it; I’m in favor of more stringent anti-bribery laws, and more expansive interpretations of the ones we have. But we don’t put people in prison because their conduct “smells wrong.” We have a presumption of innocence, and a requirement that the government prove guilt beyond a reasonable doubt, for good reasons. To be fair, in contrast to my criticisms of the rest of his argument, here I think the issue is more one of poorly chosen rhetoric. But rhetoric can be important.
- Finally, I was put off by the piece’s hysterical tone, and its wildly implausible suggestion that the DOJ’s decision not to re-prosecute one former governor (or, perhaps more generally, some combination of the U.S. Supreme Court’s narrow interpretation of federal bribery laws and its solicitude for constitutional challenges to campaign finance regulations) means that the political corruption in the U.S. is, or soon will be, as bad as it is in “Third World or former Soviet countries,” that the U.S. is no longer a “leader on combatting political corruption,” and that it is now a “stinking city on the Hill,” etc. To be clear, I think the U.S. has a lot of problems in this area, and ought to be vigorously criticized and called out when its conduct falls short of its purported ideals. With respect to the McDonnell case in particular, I’ve done a lot of my own criticizing. And I hate it when U.S. speakers arrogantly suggest to international audiences that the U.S. is the only country in the world that really cares about fighting corruption. But let’s get real: To suggest that an unfortunate narrowing of the U.S. federal anti-bribery laws, or a misguided invalidation of certain campaign finance restrictions, means that there’s no longer a meaningful difference between the U.S. and, say, Russia or Uzbekistan or Azerbaijan with respect to political corruption, is nonsense.
GAB | The Global Anticorruption Blog 
Reblogged this on Matthews' Blog.
Hear, hear Matthew! But let’s not all loose sight of the fact that the underlying “McDonnell loophole” really rests with the sorry state of Virginia’s own corruption laws — or lack thereof. Jefferson must be turning over in his grave at the Supreme Court’s ruling in McDonnell & Citizen’s United as well as the Commonwealth’s anything but international best practices jurisprudence!
I’m completely with you on the inadequacy of Virginia’s laws on gifts to politicians, at least at the time that the relevant conduct took place. I gather, though, from Rick’s comment on an earlier post that Virginia has at least amended its laws to require disclosure of the sorts of gifts that were at issue in this case (http://lis.virginia.gov/cgi-bin/legp604.exe?151+ful+CHAP0777). I’d favor stricter laws, ones that would prohibit gifts of a certain monetary value to politicians.
Rick’s note is well taken! The ethics/gifts laws are indeed tighter now but Virginia’s absence of laws related to campaign finance and travel keep the corruption door wide open. The net effect is that it will not be hard for lobbyists, CEO’s and others to find other ways to pay and play without giving out Rolexes. That said, it is clear we need to take a hard look at a range of outdated state and federal anti-corruption laws to make sure they are mutually supportive and compatible with both U.S. and global best practices — not to mention the laws and policies in international treaties we have obligated ourselves to implement (UNCAC). We are hardly setting a good example to the rest of the world. Perhaps someone is up to this task?
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Dear Mathhew:
Thanks to Trump and others, the tone of civil discourse has been lowered of late and it is sad that in your comments on my article that you should resort to insults. If you wanted to know how many co-founders there are of Transparency International then a small amount of research would have yielded the answer. I was one of three people to sign the TI Charter of incorporation; I served from the start of TI’s life for nine years as the organization’s Vice Chairman and throughout that period I served on a pro bono basis as the organization’s global communications officer; I was engaged in discussions on the eventual establishment of Ti from late 1990 onwards. The history of TI and details on the co-founders are easily available in my book: Waging War on Corruption – Inside the Movement Fighting the Abuse of Power — just released in paperback by Roman & Littlefield. You might purchase a copy and become better informed.
Whatever fine points you wish to highlight, the fact is that McDonnell (while serving as Governor of Virginia) and his family got away with gifts valued at over $175,000 from a businessman who obtained access to influential circles in and around the government of the State of Virginia. This is bad news for all concerned to end the impunity of powerful politicians.
In previous articles I have highlighted the courage of public prosecutors in the United States and I did not disparage them in my article, despite your claim to the contrary. I believe that the decision not to prosecute in this case was made at a very high political level in the Department of Justice. If you have information that disputes this, please share it.
I interpreted Justice Roberts’s opinion somewhat differently to yo. I am not al,one. Indeed a Federal judge determined in late August that Sheldon Silver, who was convicted on corruption charges, could remain free as he appeals his conviction. The judge cited the Supreme Court decision in the McDonnell case in this regard.
My article did not mention a comparison with Russia or the other countries that you mentioned. We certainly can debate issues, but I submit that the discussion be both civil and, should it relate to what I have written, then it should focus on what I actually wrote and not on what you imagine I wrote.
Sincerely,
Frank Vogl
The state of civil discourse certainly has reached a sorry point when we can no longer distinguish Trump-ish vulgarity from a bit of tongue-in-cheek sarcasm about TI’s many founders (a topic about which I’m hardly the first to crack a joke). You don’t need to cite your credentials. They’re all very impressive. Which is exactly why, as I said in the post, your comments are especially deserving of critical scrutiny. As for my characterization of the substance of your post as “histrionic nonsense,” that was an attack on your arguments, not on you, and I stand by it.
Moving on to substance:
I’m well aware of what Governor McDonnell did (and what he’s alleged to have done), and like you I think that he should have been convicted, and that the fact that he wasn’t is potentially bad news for the fight against high-level corruption in the U.S. I’ve written about this repeatedly. If you want to know my views on the McDonnell case, then–as you might put it–“a small amount of research would have yielded the answer.” But at least on the fact that McDonnell engaged in criminal acts and his conviction should have been affirmed, we agree.
As for the DOJ’s decision not to re-prosecute, it probably was made at high levels — most likely the US Attorney in charge of the case, in consultation with higher-level officials in the Justice Department. Those same high-level officials supported the original prosecution, and seem to have made cracking down on public corruption a priority. I’m glad to know you didn’t mean to disparage the line prosecutors (though you seem a bit coy on whether you think the higher-level DOJ officials have capitulated and accepted grand corruption). But your post seemed very clearly to treat the DOJ’s decision not to re-prosecute as a sign that now “anything goes in America, third world style” (your words). And when you linked to another version of your post on the corruption Facebook group, your title — in clear reference to the the DOJ’s decision, not the Supreme Court decision several weeks earlier — was “America moves to legalize grand corruption.” That’s what I was reacting to.
As to our difference of interpretation on Chief Justice Roberts’ decision in the McDonnell case, I agree that there’s some very troubling language in the opinion, and it might portend a dangerously lax attitude toward high-level corruption. But that doesn’t change the fact that the decision itself was specifically about the jury instruction, and the Court said explicitly that if the prosecutors could prove to a properly-instructed jury that McDonnell had accepted these benefits in exchange for putting pressure on subordinates to take specific actions that would favor the businessman, a conviction would be proper. I’m not sure how you can read the opinion differently on that point. As for Sheldon Silver, yes, a judge cited McDonnell in allowing him to remain free pending appeal, but that’s because the jury instruction in that case was similar to the instruction in McDonnell, and there’s therefore a high likelihood it was deficient for the same reason. What I objected to in your post was not the idea that the Supreme Court should have affirmed McDonnell’s conviction (I agree with that!), but your statement that the Supreme Court concluded McDonnell “did nothing wrong.” The Court doesn’t say that. The Court held that the legal theory the government advanced, and the trial judge accepted in his jury instructions, would allow a conviction even if the government failed to prove beyond a reasonable doubt that McDonnell had provided or promised any “official act” in exchange for those expensive gifts.
As for your statement that your article “did not mention a comparison with Russia or the other countries [I] mentioned [Uzbekistan and Azerbaijan],” I was reacting to the part of your post where you said (after describing the “grand corruption” at issue in cases like McDonnell): “[T]his is the kind of political corruption found in Third World or former Soviet countries – but it is perfectly legal in the United States today” (as well as the line earlier in your post that said the U.S. “has now fallen into line with the lax standards of business-political relationships that pervade many other countries.”) Much as I’m disgusted by what McDonnell did, and wish his conviction would be affirmed, I bristled at that false equivalence. It’s true you didn’t say specifically “Russia” (or Uzbekistan or Azerbaijan). Which “former Soviet countries” did you have in mind? Ukraine? Kazakhstan? And if you didn’t mean to imply an equivalence between political corruption in the U.S. and political corruption in “third world countries,” then I’m not sure I comprehend what you meant when you said in your post, for example, “Anything goes in America, third-world style.”
I wholeheartedly agree that the discussion should be civil, though that doesn’t mean one can’t vigorously attack ideas and arguments — rather than people — in strong, sharp, or even sarcastic language. I also agree that criticisms of your writing should focus on what you actually wrote, and if any of my criticisms are based on a misunderstanding, I would welcome further clarification, and would gladly retract criticisms (and the strong language in which they may have been framed) that are inapposite. But nothing in your comment leads me to believe that’s the case here. Your post, as I read it, advanced the following claims: (1) the DOJ’s decision not to prosecute McDonnell shows that now the US Justice Department tolerates grand corruption, (2) the Supreme Court said there was nothing wrong with what McDonnell is alleged to have done, (3) the mainstream of the Democratic Party (including, by insinuation, Secretary Clinton) are just fine with unregulated money in politics, and (4) political corruption in the US (and its regulation) is now no different than in former Soviet or Third World countries. I think all of those claims are wrong, for the reasons I gave in my post. If you want to disavow any of those claims (and/or clarify that you never intended to make them in the first place), please do. If you want to defend them, please do, and we can get on with the merits of the argument.
Dear Matthew:
I have never consider personal insults to be humor. A number of people have risked their lives and demonstrated enormous courage to develop the TI organization and to promote corruption in many dangerous places and so your insulting comments can only be seen as pointed not just at me, but at so many others as well.
On the core issues of corruption in the United States and its prosecution. As noted in my first response, I have recognized in the past the admirable actions of many public prosecutors in the United States. But I make a distinction between these professionals and their political masters at times. The failure, for example, to prosecute top level bankers, and to accept settlements with banks that enable them to evade admitting guilt, has at times been quite scandalous.
It is difficult for me to see how HSBC, for example, which perpetrated money laundering on a major scale in the United States, was able to evade prosecution. I believe, to look at this whole issue from yet another perspective, that the Citizens United decision was a scandal and I share the views expressed on this, for example, by Bernie Sanders. Indeed, I believe that the enormous weaknesses evident in U.S. democracy today, where money trumps all, reflects the failure of many people in this country who have influence to come together to defend what is right and to call for prosecutions in instances where there is wrong.
Finding nuances, as you enjoy doing, so that you overlook some of what Justice Roberts said in his opinion on the McDonnelll case, while dwelling on other parts, no doubt wins you plaudits in the ivory towers of academia, but fails to alert a broader public to the evolving undermining of democracy in this country as rogues like McDonnell enjoy impunity – impunity not unlike that enjoyed many influential politicians in Third World countries (whether you like it or not).
Frank Vogl
Ha! OK, I’ll admit I’d had you pegged as rather dour and humorless, but the first paragraph of your latest comment proved me wrong. I confess that when I first read it, I actually thought for a moment that you were serious. But then I realized that equating an in-passing joke about the TI’s many founders with a personal attack on the courageous men and woman who have risked their lives fighting corruption was so transparently ridiculous it could only be a joke. After all, nobody could possibly be that thin-skinned and self-aggrandizing. I appreciate your send-up of the excess sensitivity, sanctimony, and self-seriousness that sometimes characterizes these heated blog exchanges. I also appreciate your dry, deadpan delivery: Again, I almost fell for it, and if I had, I can only assume you would have escalated your faux-outrage until I realized you were making fun of me. Well played, sir, well played.
Despite my newfound appreciation for your ironic wit, I still disagree with you on the substance. Indeed, nothing in your most recent comment persuades me to withdraw or moderate any aspect of my previous critique. We’re probably reaching the point where further back-and-forth is adding more heat than light, but let me take one more crack at this. In my previous comments I identified four main points I thought you were making in your original post. In your most recent comment you don’t seem to take issue with that characterization, so I’ll use those four points as a framework for organizing this sur-reply:
Issue #1: The DOJ’s Failure to Re-Prosecute Bob McDonnell
Let me begin with a point where I think we agree: Like you, I was hoping that the DOJ would re-prosecute Bob McDonnell, and I was disappointed in the decision not to do so.
That said, we continue to disagree regarding the broader significance of that decision. The central claim of your original post, as I understood it, was that the DOJ’s decision not to re-prosecute Bob McDonnell after the Supreme Court vacated his conviction was a sign that the DOJ no longer cares about high-level political corruption, had effectively accepted its legalization, etc. In my post above, I explained why I did not find that a plausible interpretation of the DOJ’s action. In your response, you clarify that you did not mean to impugn the integrity or commitment of the professional line prosecutors in the US; rather, you lay the blame for the failure to re-prosecute McDonnell—and for the non-prosecution of bankers in other cases—at the feet of the DOJ prosecutors’ “political masters.” (Presumably you mean current Attorney General Loretta Lynch, her predecessor Eric Holder, and perhaps President Obama as well?) On the McDonnell case, I don’t find this a plausible interpretation, for several reasons. First, there was nothing particularly out of the ordinary about the decision not to re-prosecute in a case like this, and so no prima facie reason to suspect unusual political interference. Second, if the DOJ prosecutors’ “political masters” had wanted to put the kibosh on the McDonnell prosecution, why would they have waited until the Supreme Court vacated his conviction? Why support the vigorous prosecution right up to that point? Why litigate all the way to the Supreme Court? And for that matter, why would the DOJ still pursuing the prosecutions of other public figures like Bob Menendez and Sheldon Silver? You have pointed to not a single shred of evidence that the DOJ’s decision not to re-prosecute McDonnell was based on anything other than the Department’s good faith (if possibly erroneous) calculation that the odds of conviction were too low, compared to the costs of an unsuccessful prosecution, to make a re-prosecution worthwhile.
In your most recent comment you also point to other issues like the failure of the DOJ to prosecute individual bankers, its settlements with some banks, and in particular the non-prosecution of HSBC. These are interesting and important questions, but they are quite far afield from the original question of whether the decision not to re-prosecute McDonnell indicates that the DOJ no longer takes seriously the prosecution of high-level political corruption. I think that the issue of DOJ’s prosecutorial strategy in cases involving financial fraud is both interesting and important—and perhaps more complicated than your comment suggests or that I can really go into in depth here. I’m happy to engage with you on that issue at some point, but for now, I just want to re-emphasize that the suggestion that the decision not to re-prosecute Bob McDonnell is a sign that the US DOJ doesn’t care about grand corruption—and the insinuation that this decision was engineered by Loretta Lynch or some other high-level administration official for political reasons—strikes me as quite silly, and would at the least require some sort of evidence or cogent logical argument, neither of which you have yet supplied.
Issue #2: The Supreme Court’s Decision in the McDonnell Case
Here, let me again start out by emphasizing some points where we agree. Like you, I thought McDonnell’s conviction ought to have been affirmed. Also like you, I found some of the language in Chief Justice Roberts’ opinion for the Court deeply troubling, both in its excess solicitude for the interests of politicians and their donors and lobbyists, and in its minimization of the risks of public corruption. (I’m a bit puzzled by your suggestion that I “overlook[ed]” this aspect of the opinion, given that I devoted a substantial chunk of a recent blog post to this specific concern (https://globalanticorruptionblog.com/2016/07/19/the-supreme-courts-mcdonnell-opinion-a-post-mortem/).)
Where we disagree is on the characterization of the opinion itself. You describe the Court’s opinion as concluding that there was nothing wrong with what McDonnell was alleged to have done, and that the Supreme Court thinks it’s perfectly legal to accept expensive gifts in exchange for promising to help the giver secure favorable government action. As I said in my original post and reiterated in my first comment above, that’s just a misreading of the opinion. It’s true that some of McDonnell’s supporters had advocated something like that sweeping view, and I was worried that the Supreme Court might adopt it (https://globalanticorruptionblog.com/2015/09/10/dont-be-fooled-bob-mcdonnells-supporters-want-to-legalize-bribery-of-senior-government-officials/). But, thankfully, that’s not what the Court did. The Court rested its holding on an allegedly overbroad jury instruction, and left open the possibility that if the government could prove that a government official promised to exert pressure on subordinates to help the party who made the payments, that would be sufficient to sustain a bribery conviction. In your most recent comment, you don’t seem to offer any substantive rebuttal. Rather, you suggest that “finding nuances” in the opinion, allegedly “overlook[ing]” the troubling language (which, again, I didn’t), and “dwelling on other parts” (by which I take it you mean the actual holding of the case) is something of interest only to Ivory Tower academics, and disserves the public interest.
I disagree. Paying attention to these “nuances” is important, for at least three related reasons. First, while some simplification is always inevitable, as analysts we have a duty to be as accurate as possible. Second, if one is going to sharply criticize something, it’s only fair to try to make sure one is reading it carefully and charitably. After all, as you pointed out in your first comment on my post, you said (quite rightly) that my criticisms “should focus on what [you] actually wrote and not on what [I] imagine [you] wrote.” Fair enough, and I’ve tried to be careful about that. But don’t you think that a unanimous opinion of the U.S. Supreme Court is entitled to at least the same degree of respect and careful reading as one of your blog posts? Third, while it may seem tempting to ignore the “nuances” in order to mobilize the public, I think this “clearer than the truth” strategy can often backfire by undermining advocates’ credibility. (We’ve had some interesting discussions about this issue on the blog – see for example here: https://globalanticorruptionblog.com/2014/10/02/more-on-the-tension-between-analysis-and-advocacy-for-anticorruption-academics/ and here: https://globalanticorruptionblog.com/2016/01/12/assessing-corruption-do-we-need-a-number/).
One more thing: Isn’t there a tension between your claim that the Supreme Court has effectively legalized grand corruption in the McDonnell opinion and your criticism of the DOJ for not attempting to re-prosecute? After all, if the Supreme Court had indeed held that McDonnell could not be convicted for what he is alleged to have done, then the only rational thing for the DOJ to do would be not to re-prosecute! Criticizing the DOJ for not re-prosecuting (which you do) only makes sense if one reads the Supreme Court’s opinion as leaving the door open for a possible re-conviction (which you do not). So I confess I’m a bit confused about what exactly your argument is.
Issue #3: The Democratic Party’s Views on Money in Politics
I took issue with the claim in your original post that the mainstream of the Democratic party was just fine with money in politics (including the Citizens United decision), along with your insinuation that Hillary Clinton shared this view. I’m glad to see you appear to have backed off of those unsubstantiated assertions.
I see in your most recent comment you do bring up Citizens United again, but in what seems to be a somewhat different context. I basically agree with you that Citizens United was (probably) wrongly decided, though after perusing the recent research (some of which I linked to in my original post), I was somewhat surprised to find that that the decision doesn’t seem to have had that much impact. But like the issue of the prosecution of bankers, this is a larger issue for another day.
Issue #4: Political Corruption in the U.S. as Compared to Elsewhere
Another one of my biggest beefs with your original post was your suggestion that, in light of things like the McDonnell decision, political corruption and the impunity problem are now no different in the U.S. than they are in many former Soviet and Third World countries. While sharing some of your concerns about excess money in U.S. politics, as well as the view that U.S. anticorruption laws ought to be strengthened, I thought that this suggested equivalence was, frankly, a ridiculous, counterproductive exaggeration. In your first comment, you seemed to deny ever having suggested this sort of equivalence, and your chastised me for an inaccurate reading of your argument. In your most recent comment, you appear to have doubled down on the original claim, writing that the McDonnell enjoys “impunity not unlike that enjoyed [by] many influential politicians in Third World countries[.]”
Respectfully, I don’t think I would characterize McDonnell as enjoying “impunity.” This may be semantics, but when I think of “impunity,” I think of a situation in which a powerful politician knows that he can do basically whatever he wants because the corrupt justice system (controlled by his cronies, or itself susceptible to bribery and intimidation) will not investigate or prosecute him. But that’s not the case here. McDonnell was prosecuted—vigorously. He was tried by an impartial court system, which ultimately failed to convict him, due to an arguably erroneous interpretation of the law. That doesn’t sound like “impunity” as I understand it—it sounds like the government prosecutors failed to satisfy their burden of proof, according to the court’s view of the correct legal standard, in this particular case. Do you mean to suggest that every defendant who is acquitted “enjoys impunity.” Here again, you seem to be displaying a misunderstanding (or contempt) for basic principles of the rule of law, like the presumption of innocence and the burden of proving criminal guilt beyond a reasonable doubt.
More generally, if you mean to suggest that the acquittal of this defendant, or the state of U.S. anticorruption law enforcement more generally, means that the U.S., for all its faults, is not significantly different on this issue from, say, Russia or Uzbekistan or Malaysia or South Africa or whatever other “Third World countries” you have in mind, then all I can do is shake my head and sigh—or perhaps suggest that you provide a bit more evidence to substantiate that provocative claim.