Brief Filed Opposing Attempts by Federal Prosecutors to Assert Control Over State and Local Officials
March 11, 2016
McDonnell v. United States
(Read brief here)
On March 7, 2016, our firm filed an amicus curiae brief in the U.S. Supreme Court in support of former Virginia Governor Bob McDonnell's
challenge to his conviction on federal corruption charges.
Before and during the trial, the federal prosecutors made every effort to tar McDonnell with the brush of corruption - and once we examined the
basis for the criminal case brought against him, we knew why that public relations strategy was essential to obtaining a conviction. Without
the scent of scandal in the air, the district judge and the jurors might have noticed that none of those federal criminal statutes employed
against McDonnell were enacted for the purpose of curbing bribery and corruption in state and local government. Instead, those statutes were designed
to prevent interference with inter-state commerce. Yet increasingly, laws such as mail and wire fraud, are being used by federal prosecutors,
often motivated by political animus or personal ambition, to take down whichever state and local officials appear in their crosshairs.
The Virginia General Assembly carefully and comprehensively designed Virginia law to prohibit and punish bribery and corruption throughout the
Commonwealth, and everyone agreed that McDonnell violated none of these Virginia laws. However, that little detail did not matter to a small
army of federal prosecutors, who went about assembling a web of intrigue, finding fault with McDonnell's exercise of even the most mundane and
common affairs of a Governor. For example, he was accused of responding to a request from a personal friend to set up a constituent meeting with
another government official. If such prosecutorial tactics are allowed, there isn't a state or local official in the country who could not be
intimidated by just one phone call from a federal prosecutor.
Our brief argues that setting and enforcing ethical standards applicable to state and local government officials is not among the enumerated
powers vested in Congress. Rather, such matters belong exclusively to the States and to the People of each State. This exclusive state
authority is protected not only by the Tenth Amendment, but also is secured to the States by the Constitution's guarantee of a republican form
of government. It is the responsibility of elected State government officials to set the standards that govern communications and relationships
between state and local officials and their constituents. It is not for unelected federal prosecutors to have the power to bring down state and
local officials. If federal prosecutors are allowed to exercise such powers, what State official could be counted upon to do his duty to resist
an overreach of federal power?
The prosecution of former Governor McDonnell treats a Governor as if he were just a cog in the national machinery of one general government.
On the contrary, a Governor is the head of an independent and sovereign state. This prosecution and conviction, if allowed to stand, will further
undermine the nation's federal structure, threatening not only State government officials, but eventually the citizens of that state with loss of
their liberties at the hands of an unchecked federal government.
Our brief was submitted as a strong voice for the nation's original federal system, and in opposition to the modern trend to over-criminalize
American life, subjecting ordinary persons to an unresponsive and monolithic bureaucracy headquartered in Washington, D.C.
Our brief was filed on behalf of U.S. Justice Foundation, Citizens United, Citizens United Foundation, Gun Owners of America, Gun Owners
Foundation, Gun Owners of California, Conservative Legal Defense and Education Fund, and Institute on the Constitution.
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