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Prosecuting Elected Officials for Corruption: A Tale of Four Governors
by Jordan Moran
As Phil and Rick pointed
out a few months ago, America’s domestic anti-bribery laws and the
attendant court interpretations are, for lack of a better term, a hot
mess. In principle, the crime of bribery is straightforward: To secure a
conviction, the prosecutor need only convince the jury that (1) there
was some agreement (explicit or otherwise) whereby (2) the official
would receive something of value (3) in exchange for using his official
position in some manner. Unfortunately, though, that burden of proof
often becomes far more complicated when the alleged bribe recipient is a high-ranking elected
official. When a politician regularly solicits campaign contributions
and simultaneously wields political influence to the benefit of
constituents, it is often hard to see where politics ends and corruption
begins. And after the U.S. Supreme Court's decisions in cases like Citizens United and Skilling, prosecutors are left wondering when the corrupting influence of money on politics can still be prosecuted as "corruption."
Today,
I want to step back from this confusion and distill a few lessons that I
believe still hold true for any US prosecutor investigating an elected official for bribery. To do that, I consider allegations that have been made against four past and present governors — Rod Blagojevich (Illinois), Andrew Cuomo (New York), Don Siegelman (Alabama), and Robert McDonnell (Virginia)
— and ask one loaded question: what does it take to prove that an
elected official misused his position in exchange for something of
value?
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