McDonnell and the Criminalization of Politics

Abstract

The purpose of this article is to analyze the critique and McDonnell's impact on it. As for McDonnell itself, I contend that the decision gives proponents of the critique less than they claim. The opinion seems to say that an official whose case is identical to McDonnell's could, under a proper approach to bribery, be prosecuted for the same crimes, with the same facts used as evidence. Indeed, the Court raised the possibility that McDonnell himself could be successfully prosecuted in a retrial. The article begins with a discussion of the critique in order to put McDonnell in context. In particular, I examine what is new in the debate over how the federal government should handle possible corruption, and the extent to which McDonnell is part of that shift. Part I explores the critique in depth. Part II analyzes the Supreme Court's decision in McDonnell and its background. As a unanimous decision, McDonnell may be of great significance in how the legal system treats the federal government's role. Part III offers some speculation on the federal anticorruption enterprise going forward.