When to Police Political Behavior

WASHINGTON -- The headlines bring the accidentally colliding tale of two governors and, with it, a valuable debate about the proper role -- and proper limits -- of criminal law in policing political behavior.

Exhibit A is the questionable -- "sketchy" was the apt word used by, of all people, Democratic strategist David Axelrod -- indictment of Texas Republican Gov. Rick Perry.

Exhibit B, a responsible contrast to the Perry mess, is the ongoing federal trial of former Virginia Gov. Bob McDonnell, also a Republican.

The difference between these two prosecutions is the difference between the appropriate -- indeed, the necessary -- function of criminal law in punishing political corruption and the risk of prosecutors wielding the threat of jail time in cases where voters should be free to judge for themselves the behavior of elected officials.

It is the difference, too, between hardball politics practiced in the light of day and the kind of furtive self-dealing that requires a grand jury and subpoena power to unearth effectively.

Start with Perry. Rosemary Lehmberg, the Travis County district attorney, disgraced herself and her office when she was arrested last year for astonishingly drunk driving and was videotaped abusing the arresting officers. Perry demanded that Lehmberg resign and, when she balked, threatened and executed a veto of state funding for her office's ethics unit.

There are wrinkles here that could legitimately pique a prosecutor's interest. Lehmberg is not only a Democrat but, under the state's wacky arrangement, is responsible for investigating state-level public corruption cases.

At the time of Lehmberg's arrest, her office was investigating the Cancer Prevention and Research Institute of Texas, a state agency that disbursed research funds, including to major Perry donors. Last year, the office indicted a top agency official for awarding an $11 million grant to a Dallas biotechnology firm without undertaking required reviews.

Then came a court-appointed special prosecutor with what looks like a shockingly skimpy indictment of Perry. He is charged with coercion of a public official for threatening to strip Lehmberg's funding if she did not resign and misusing government property by exercising his veto authority when she failed to comply.

The prosecutor doesn't seem to be a partisan cowboy, so perhaps there is some undisclosed smoking-gun fact. But for now, to read the language of the criminal statutes is to understand how far the prosecutor had to stretch to fit Perry's acts within the contours of a criminal violation.

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.