Federal corruption law is too broad

The Department of Justice’s recent high profile indictment of Sen. Bob Menendez (D-N.J.) highlights a troubling problem with our federal criminal law – especially as it relates to public corruption cases.

Menendez received a number of gifts and did a number of things to help a friend of his who gave him the gifts. The Department of Justice says that’s a crime.

{mosads}Menendez says the Department of Justice doesn’t understand that receiving presents and doing favors is simply a part of how politics works. People help their friends, either with campaign contributions or with outreach to another part of the government

The trouble is both the Department of Justice and Menendez might be right.

Right now the line between what counts as a crime and what counts as merely doing a favor for a friend who has given you a campaign contribution is not finely drawn.

This is especially true after the prosecution of former Gov. Bob McDonnell (R-Va.)

There, the government successfully argued that, in essence, an official act can be as broad as basically anything done by an official while in office. The kinds of things that a public official does for his or her friends and constituents is so broad as to be boundless. And everyone in office is raising money, ­ receiving a thing of value ­from lots of people. Very few of those folks are giving money out of the goodness of their hearts.

Under the law, the Department of Justice can prosecute close to any elected official under its aggressive view of the law. What gets prosecuted is anything that the Department of Justice can convince a jury is gross. If the gifts or favors would turn a juror’s stomach, the case goes to a jury.

The problem is that this is lawless. What the law should do ­ especially in a criminal case when the government is trying to put someone in prison ­ is clearly define what conduct is illegal and clearly define exactly when someone can be put in prison for violating it.

Otherwise, lots of people are violating the law, but relying on the gut judgment of a prosecutor to not be prosecuted. This is bad policy.

If Menendez’s actions in exchange for campaign contributions or travel on credit card points is a crime then there’s little principled difference between that and a local city council person making a call to a zoning commissioner when a neighbor of his down the street gave him 25 bucks for his campaign. That’s simply how politics works.

Congress is unpopular. People have lost confidence that politicians are acting on their behalf. But regulating what government officials do through laws that are this broad and ambiguous is the wrong way to reestablish faith in our government.

Kaiser and Dillon are partners in the law firm Kaiser, LeGrand & Dillon.