The “Everybody Does It” Defense

The Supreme Court might let Bob McDonnell off the hook because it can’t even define political corruption anymore.

Two big themes emerge on Wednesday in McDonnell v. United States, the appeal of former Virginia Gov. Bob McDonnell of his felony public corruption conviction. The first is that if lawyers across ideological lines agree that McDonnell was wrongly convicted under a vague and unfair ethics statute, they must be correct. As Chief Justice John Roberts notes in one of his first questions to Deputy Solicitor General Michael Dreeben—arguing in favor of sending McDonnell to prison to serve his two-year sentence—an “extraordinary document was filed by former federal officials from every administration, all in support of McDonnell.” They argue, says Roberts, that “if this decision is upheld, it will cripple the ability of elected officials to fulfill their role in our representative democracy.”

Which brings us to the other big theme: It seems obvious to the justices that public corruption and ethics rules are adorable, antiquated, and unenforceable because everybody does it. Dreeben’s response to Roberts’ question about the “extraordinary” strange bedfellows supporting the opposing side points to the depressing endpoint of this logic. Under McDonnell’s attempt to define corruption down with his appeal, Dreeben says, “[This] theory of governance really is that people can pay for access, that they can be charged to have a meeting, or have a direction made to another government official to take the meeting.”

But if everyone already does it? Well, then it’s possible that’s not corruption and that everyone but Dreeben got the memo.

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