When to Police Political Behavior

Consider: Politicians don't generally issue news releases announcing their supposed "crimes." Perry has line-item veto power. Certainly, he couldn't take a bribe in return for using it. But absent evidence of such corruption, where is the (constitutionally required) warning to Perry that he was treading into criminal territory? Did he want Lehmberg out of his hair? Politicians often act from a blend of self-interest and public policy. The prosecution's theory threatens to turn ordinary political horse-trading -- I'll support your bridge if you back my budget bill -- into potential crimes.

The McDonnell trial presents a different scenario, one of secret use of public office to reap private benefit. Here, too, prosecutors were undoubtedly aggressive in pursuing a criminal case against the former Virginia governor and his wife: Governors regularly help local businesses market their products. Virginia's gift and disclosure laws are notoriously lax.

Still, where Perry's veto threat and demand for Lehmberg's resignation were public, the McDonnells' actions on behalf of businessman Jonnie Williams -- and Williams' lavish "gifts" to the McDonnells -- were shielded, at times deliberately, from public view.

Trial testimony has underscored the rapaciousness of the McDonnells' appetite for cash, private jet services and Ferrari rides, luxury vacations, an engraved Rolex and other favors from Williams, who was seeking state support for his dietary supplement. Former first lady Maureen McDonnell was clearly the driving force behind the deluge of gifts, and the fact that she is not charged as a state official makes it harder for prosecutors to show there were official acts in return for Williams' largesse.

Yet the trial has also featured testimony about the governor's efforts on Williams' behalf and moves by the governor and the businessman to hide their dealings. Virginians couldn't judge the ethics of McDonnell's conduct for themselves because he concealed it from them.

The over-criminalization of politics is not a left-right issue. Prosecutors have overstepped when it comes to Democrats (former North Carolina Sen. John Edwards) and Republicans (former House Majority Leader Tom DeLay). Criminal law is a powerful tool for overseeing politicians. Which is why it needs to be used sparingly, and with exquisite care.

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Ruth Marcus' email address is ruthmarcus@washpost.com.