Georgia, Scott and Chuck

Last week the Seventh Circuit released its opinion in the Georgia Thompson case. One of the things that the court was concerned about was the rather vague nature of the statutes applied.

For example, one of the laws that she was convicted of makes it a crime to use the U.S. mails in a scheme or artifice to defraud, including depriving someone of the intangible right to honest services. The prosecution theory was that taking into account her bosses' political concerns deprived the state of honest services.

Another, in pertinent part, makes it a crime for a federal agent to misapply government property or funds. The theory was that, by allowing improper factors to affect the award of a travel contract and to divert it from the rightful recipient, Thompson misapplied state funds.

The panel acknowledged - at least implicity - that the language of these statutes can be made to fit the conduct in which Thompson was alleged to have engaged, but concluded that such a reading would criminalize conduct that Congress did not intend to criminalize and, with respect to which, government employees would have no advance warning of its "criminal" nature.

One can use this to make partisan hay and suggest that U.S. Attorney Steve Biskupic "must have been" pressured politically to take such an aggressive view of the law.

But this type of aggressive application of criminal statutes to what was formerly regarded to be the grimier side of politics as usual is not new or limited to Republican-appointed prosecutors.

In fact, one can argue (and I have) that the convictions of Scott Jensen and Chuck Chvala fall into the same category. The statute that they were convicted of prohibits a state officer or employees from exercising a "discretionary power in a manner inconsistent with the duties of the officer's or employee's office or employment or the rights of others and with intent to obtain a dishonest advantage for the officer or employee or another ...."

You could argue that using legislative resources for political purposes falls within this language. But you can also argue that it is the very essence of legislative leadership. It is the leader's job to get a majority for what he or she believes to be the best policies for the state.

The decision upholding Chvala's conviction pointed to the Senate Policy manual's prohibition of campaigning on state time or with state resources. But how different is this than Biskupic's reliance on Thompson's supposed departure from the state's elaborate scoring procedure?

The cases are different in that it is clear what Chvala and Jensen were up to and not so clear in the Thompson case. But Chvala and Jensen arguably had no more idea that they were committing a crime (as opposed to ignoring legislative rules that everyone had long ignored) than, according to the Seventh Circuit, Georgia Thompson had.

Part of the increasing criminalization of politics is driven by a desire for partisan advantage, but some of it stems from a zeal to combat public corruption. I think the latter is what happened in all of these cases.