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Adjunct Professor Jonathan S. Sack on Drawing the Line Between Politics as Usual and Criminality.

In the Media
Thursday, March 6, 2014

Are We Criminalizing Politics as Usual
By Elkan Abramowitz and Jonathan Sack
New York Law Journal
March 5, 2014

From time immemorial political leaders have used gifts and favors—whatever had value in a given era—as a means of gaining and maintaining power. In turn, others who sought power or fortune reciprocated by giving something of value to political leaders.

Politics in our own era is no exception. Members of Congress, for example, routinely use their clout to help constituents secure government benefits, and votes and campaign contributions are expected in return for such efforts.1 While some of these ministrations may seem distasteful, they follow logically from the expansion of federal programs, and few would consider them criminal—unless they crossed some hard-to-draw line between corruption and the ordinary trading of favors.

One of the principal battlegrounds where the line is drawn between ordinary politics and illegal graft is federal honest services law, used to prosecute corruption in the public and private sectors. In this article, we revisit honest services law,2 particularly as it has been applied in the January 2014 indictment of former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell.3

The 14-count indictment charges conspiracy to commit honest services fraud and three substantive counts of honest services fraud. The case against the McDonnells raises questions not only about how honest services law should be used but, more broadly, whether the government is seeking to criminalize politics as usual.

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