Friday, 10 Apr 2015 11:42 AM
By Alan Dershowitz
Whenever a prominent political figure is indicted on charges of alleged corruption, serious questions arise. Is the prosecution part of a growing and dangerous trend toward criminalizing policy differences? Does it endanger the free speech rights of contributors? Will it constrain the legislative branch from serving as a check and balance on the executive?
These questions now are being raised in the context of the prosecution of New Jersey Sen. Robert Menendez, as they previously were in several other ill-advised prosecutions including those of former agriculture secretary Mike Espy, former presidential candidate John Edwards, the late Sen. Ted Stevens, former Congressman Tom Delay, and former Texas Gov. Rick Perry.
The reason these questions arise is not because there is no corruption in government. It is because the laws distinguishing between constitutionally protected political activities and illegal payments to office holders are vague and indeterminate. These laws give prosecutors enormous discretion to determine whether to prosecute questionable transactions. And the courts refuse to second guess prosecutorial decisions even in cases where selective prosecution based on improper considerations seems evident.
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