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.