An appeal on behalf of Robert F. McDonnell

His conviction represents a drastic expansion of federal criminal law

The federal government should not put a person in prison for doing something that even trained lawyers do not know is illegal. Yet that is precisely what the Department of Justice is trying to do by prosecuting former Virginia Gov. Robert F. McDonnell. In order to prosecute McDonnell for his admittedly poor judgment, the Justice Department invented an unprecedented construction of the vague federal corruption laws that would — if applied consistently — mean that every politician who trades his time for meals, campaign contributions or complimentary travel is also a felon.

As attorney general of Virginia, I learned much from that experience about law enforcement. My perception was confirmed that basic justice requires making the law clear to people before prosecuting them for their conduct. It is fundamental to American law that prosecutors not invent crimes to prosecute and imprison anyone who crosses their path or anyone whom they can further their careers by prosecuting.

That is why I joined an amicus brief filed by all six eligible former Virginia attorneys general, both Democratic and Republican, in support of McDonnell’s appeal of his convictions. (A similar bipartisan brief, which I helped organize, was signed by 44 former non-Virginia attorneys general.) While his conduct may appear unseemly, it was not, and is not, prohibited by any federal law. He therefore did not commit a crime, and his convictions should be overturned.

Should the courts conclude that the vague federal laws underlying Mr. McDonnell’s convictions stretch as far as the Justice Department claims, it would put attorneys general in an extremely difficult position. It is the job of an attorney general to advise his or her governor and fellow public officials on what the law prohibits and what it permits. If every meeting, every emailed question, and every party invitation extended to donors is a potential felony, current and future attorneys general are going to face an impossible task in advising state and local officials on how to act.

More