The original standard for corruption isn’t proof beyond a shadow of a doubt that he did it. It’s based entirely on opportunity.
We’ve all been told to walk a mile in another person’s shoes. The reason, of course is that we can be selfish jerks and need to think about other people. No question. But the real reason we hear that phrase is that to understand a person, we have to change our perspective (and adopt theirs).
Sometimes we can’t see the problem from where we’re standing.
In this way, we need to reorient the way we see things in a small way if we want to better understand some of our biggest and most pressing issues.
And that’s precisely what we need to do with corruption.
If I were to ask you
what might you say? Perhaps that good people will do bad things or certain interests will get what they shouldn’t. We might talk about sin if you’re religious or the fallout from messing around.
But if I asked you
how do you know corruption?
I’m guessing the responses get less articulate and more hesitant. It’s a bit like pornography: you know it when you see it. But, just like pornography, to come up with legislation that doesn’t destroy free speech is nearly impossible.
We want to know beyond a shadow of a doubt that corruption has happened. But corruption just isn’t that specific. It’s broad and it infects everything.
Think of what happens in a legal case when a person breaks the chain of custody around a key piece of evidence. It doesn’t only mean that piece is inadmissible. The influence of malfeasance infects the surrounding parts.
Corruption is more like a disease than a symptom.
But the courts aren’t seeing it that way right now.
The 2016 Supreme Court ruling which freed Bob McDonald takes a radically different view of corruption. And it particularly highlights how difficult it is to identify and prosecute corruption on its own.
Courts love the specific and crave demonstrable proof of violation. But of course that isn’t always possible.
So they try another way to find the presence of the corruption. But again, corruption itself is challenging to prove.
In this case, the whole court it seems became enamored of an idea of corruption which is narrow, direct, and measurable: a quid pro quo. McDonald needed to have received cash and then directly acted to benefit a person in a particular way. So precise.
The benefit which had locked McDonald up was indirect; the many gifts. And the favors McDonald offered didn’t actually pan out. This is insufficient according to the Supreme Court’s new standard.
Notice that the decision was dependent on McDonald actually giving his donor something which succeeded! The court might have come to a different conclusion if McDonald were more skilled at being corrupt.
Unfortunately for all of us, this is the opposite view of corruption from the constitution.
The constitution’s view of corruption.
This seems like a reasonable decision from the court, doesn’t it? Don’t we want proof to convict? Without it, we’re dancing on a slippery slope! We could fall prey to rampant accusations of corruption: otherwise anybody could be implicated! We argue.
But the constitution isn’t silent about corruption. It shows that we need to use a different approach when dealing with it.
In the Emoluments Clause, which demands the President and officers of the United States not accept gifts from foreign entities, the framers showed how hard they thought proving corruption would be. They chose to run counter to custom and forbade incoming gifts. They could then prevent corruption from happening, rather than prosecute it for happening.
So the crime in the constitution isn’t corruption; it’s accepting the thing which would corrupt.
In other words, the founders intended a small set of laws which would inoculate the body politic from the disease of corruption, rather than wrestle with treating it like an accident.
They knew corruption was inevitable, particularly from the wealthy as they had the greatest source of corrupting influence. So they wanted to take away the most corrupting influence they could: gifts to elected leaders which would prejudice their decision-making.
The Bob McDonald case
In the case of Bob McDonald, former Governor of Virginia, it’s hard to imagine that the gifts weren’t corrupting. However, proving their corruption should not be the point: we should prove the opportunity for it, because corruption spreads. And this is precisely what Bob McDonald was most guilty of: receiving corrupting gifts.
The problem then, is that all of our campaign financing is corrupting. The whole apparatus is about building influence and changing power dynamics. The chief justice John Roberts says as much in his majority opinion!
But rather than ignore the problem like the Court did or see this as an opportunity to jail all of Washington and the capitals of all our states, we have another opportunity.
We should recognize that we can inoculate against corruption, rather than deal with eradicating it. It just takes a short walk in different shoes.
But corruption isn’t the only place where a new perspective can inform our thinking.
The question of collusion, for instance, doesn’t rest on the contents of a secret meeting or phone call.
Uncovering deleted emails or a chain of texts from unsecured phones are certainly helpful.
But collusion isn’t something proved as a quid pro quo relationship of scheming between two wax-mustachioed dudes. It’s the opportunity to influence and make common cause.
We don’t need this specificity of conversation caught on tape:
Trump: Yes, it is me, presidential candidate Donald Trump. My social security number is ***-**-****. And I would like some documents from Russia so we can work together to rig an election.
Russian Spy: Mr. Trump, we too would like to work together with you to rig an election. Here, let me send you a package to your personal residence. It will have my real name on it. The tracking number is **********. And I will send you a PDF in your email.
Trump: Thank you, I did receive that email and am reading it now. Very good things. I will now give you access to things in the United States when I win. Do you take credit cards?
The proof is in the opportunity.
So the proof is that they were in the room together or they invited future conversations.
We saw this in the publishers vs. Amazon case. They didn’t have to prove the publishers specifically talked about setting a higher price for ebooks: it was the fact that they actually sat down together. That was demonstrable and provable and gave them opportunity.
So this should be Congress’s approach to the Russian investigation. While irrefutable proof is always desired, the crime isn’t in the specific words, but the apparatus which arranges the problem: the meetings, emails, and phone calls. Here, even then-candidate Trump’s public appeal to Russia to meddle in the election is an element and instrument of collusion.
Even though the political argument is benefited with irrefutable proof, the disease of corruption is much bigger than that and must be treated like we believe it is.
A third area of focus would greatly benefit from this change of perspective: racism.
The corrupting influence of racism
The Supreme Court has very recently taken a view of racism that is just like its view of corruption. To prove racism now requires we prove direct, related, and intentional acts of bias and discrimination. And just like corruption, this specificity is nearly impossible to prove. Because the court’s new definition requires something nearly unprovable: intentional bias.
In setting such a specific standard (against the much longer jurisprudence based on actions), the court is asking the impossible of the prosecutor: to read a person’s mind or demonstrate that a person intended to be racist in their action.
Even if it were possible to prove all racists are out and proud members of the KKK, it still wouldn’t deal with the problem of racism. Because racism isn’t only a few bad apples who don’t like black people and the sick junk inside their heads.
Racism is the systemic oppression of people according to their race.
Racism isn’t defined by intention, but by the presence of the disease. The Supreme Court has gotten both racism and corruption completely wrong. So we must not make the same mistake.
We must define racism, not around the contents of the human heart alone, but around the presence of unjust systems, the discriminatory tactics, and the demonstrable ways certain persons are punished in the system without regard to the intentional actions of individuals. And the proof isn’t some other obscuring consideration like “merit” or party affiliation or economic condition or residence.
Our work is to eliminate racism and corruption. So we have to stop thinking about it like its only about racist people and focus on systems which oppress as institutional racism.
We have to understand the ways in which our systems can be corrupted by racism, including our criminal justice systems, voting rolls, and economic polices.
And we then need to refrain from advancing systemic oppression, and instead reverse those systems to inoculate the body from the disease.
If we want to fix the most unjust and demonstrably dysfunctional parts of the body politic, then it’s time to go to our annual checkups and deal with paying for preventable health, rather than running to the emergency room long after the disease has spread. Or before it’s too late.