Criminalizing politics

Paul Mirengoff takes a look at the McDonnel case and the matter of criminalizing politics. This is after the battle criminalize Governor Walker.

But how does one distinguish these offenses from the common situation in which individuals, companies, and unions give money to candidates substantial amounts of money in the hope that they will favor them in some fashion? In theory, the distinction turns on whether the recipient accepts the donation with the understanding that he or she will perform official acts in exchange.

The problem, as professor Bellin observes, is that a jury is permitted to infer such an understanding from circumstantial evidence. If the jury thinks it sees “knowing winks and nods” (these words actually appear in the jury instructions in McDonnell’s case), it can render a verdict that will send the public official to prison for a long time.

The “knowing winds and nods” standard, if one can even call it one, leaves prosecutors with enormous discretion to go after public officials they dislike for personnel reasons or want to injure for political purposes. The ridiculous, politically-motivated attempts to portray Governors Rick Perry and Scott Walker as criminals demonstrates that prosecutors will take advantage of this opening.

Such prosecutions are being used as political weapons by unscrupulous ideologues but is also a part and parcel of that ideology the presumes guilt in certain classes.

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