Cross Posted at Legal Schnauzer
Who could have imagined that George Will would prove to be more progressive than Barack Obama on fundamental matters of justice?
Will, probably the nation’s foremost conservative columnist, writes in his most recent piece that the U.S. Supreme Court should review the convictions of former Alabama Governor Don Siegelman and codefendant Richard Scrushy to ensure that overzealous prosecutors are not criminalizing standard political behavior.
The Obama Justice Department, meanwhile, has stated that the Siegelman case was correctly decided and should not be reviewed by the nation’s highest court. That presents a disturbing scenario for Democrats as they think about heading to the polls in November: George Will actually is more enlightened than Barack Obama on constitutional issues of profound importance to many progressives.
In a piece titled “Is It Bribery Or Just Politics?” Will makes it clear that he finds the Siegelman prosecution deeply troubling:
All elected officials, and those who help finance elections in the expectation that certain promises will be kept — and everyone who cares about the rule of law — should hope the Supreme Court agrees to hear Don Siegelman’s appeal of his conviction. Until the court clarifies what constitutes quid pro quo political corruption, Americans engage in politics at their peril because prosecutors have dangerous discretion to criminalize politics.
Every American politician could wind up in the federal slammer if the “Siegelman standard” is applied across the board, Will writes:
Siegelman argues that political contributions enjoy First Amendment protection, and seeking them is not optional for a politician in America’s privately funded democracy. Furthermore, elected officials must undertake official acts; some will be pleasing or otherwise beneficial to contributors. (See Solyndra.) Often this is nothing more than keeping campaign promises: People contribute because they endorse a candidate’s agenda.
Will points out what we already have noted–that the Siegelman/Scrushy convictions hang on the definition of one word (“explicit”)–and various courts disagree on what it means in the context of a bribery case involving campaign contributions. In fact, the U.S. Eleventh Circuit Court of Appeals has found that, contrary to clear precedent, a jury is free to find that a corrupt agreement is “implied.” Will is correct when he states that the muddiness of current law requires U.S. Supreme Court intervention:
If bribery can be discerned in a somehow implicit connection between a contribution and an official action, prosecutorial discretion will be vast. And there will be the political temptation to ascribe unspoken but criminal mental states to elected officials. The Supreme Court can circumscribe this dangerous discretion by affirming the principle that the quid pro quo standard for bribery requires proof, not a mere inference, of an actual communication. In the law’s current, contradictory condition, the line is blurry between the exercise of constitutional rights and the commission of a crime.
Actually, the current law on political bribery is not all that muddy. Prosecutors and defendants in the Siegelman case agree that a Supreme Court ruling styled McCormick v. United States, 500 U.S. 257 (1991) is the controlling law, and it requires that an agreement must be “explicit” in order to constitute bribery.
The real issue in the Siegelman case is not the law but judicial buffoonery (or corruption, take your pick). U.S. District Judge Mark Fuller, a Bush appointee who oversaw the Siegelman trial in the Middle District of Alabama, got it wrong by giving jury instructions that were contrary to established law. The Eleventh Circuit got it wrong by stating, more or less, that Fuller’s instructions were “in the ballpark,” and that’s good enough for a criminal conviction.
That notion should send a shiver down the spine of every sentient being in America. After all, as Don Siegelman has said many times, “if they can do this to me, they can do it to anyone.”
George Will does not go far enough in his column. He correctly addresses the issue of lawless prosecutors while ignoring the fact that our federal courts also are filled with lawless judges. They are the real danger to our democracy. Prosecutors can do only so much harm, without the aid of corrupt judges. The Siegelman/Scrushy case, sadly, has featured rogue judges from the outset.
Still, George Will makes a valuable contribution to our nation’s understanding of issues raised in the Siegelman case. This thought probably would turn Will’s stomach, but progressives who care about justice should be singing his praises today.
As for the Obama administration . . . the president and Attorney General Eric Holder should be ashamed of themselves.