Corbett's choice: Prosecute or politick

"The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous."

- U.S. Attorney General Robert H. Jackson, 1940

By David W. Marston

Pennsylvania Attorney General Tom Corbett should make a choice. He should be either a corruption-fighting prosecutor or a candidate for governor. But he should not be both at the same time.

Corbett should follow the example of Patrick Meehan, his likely opponent for the Republican nomination for governor, who stepped down as U.S. attorney once he decided to explore the possibility of a political campaign. Or he could emulate Virginia Attorney General Bob McDonnell, who recently resigned from that post to run for governor, saying it would not be fair to the taxpayers to keep one office while pursuing the other.

But Corbett insists on wearing both hats. On March 16, he interrupted his "Bonusgate" criminal investigation just long enough to announce that he might run for governor. He formed an exploratory committee and filed papers allowing him to raise money and sign up staff for the 2010 gubernatorial race. Then, right back to Bonusgate.

Now into its third year, Corbett's criminal probe targets legislators charged with using taxpayer money to pay "bonuses" to their legislative staffs for campaign activities. That would be a crime. Criminally charged to date: 12 Democratic legislators and staffers.

Meanwhile, it was just a "coincidence," Corbett's spokesman said, that Corbett's gubernatorial announcement came on the day a jury convicted legendarily untouchable former State Sen. Vincent J. Fumo on 137 felony counts, in a case initiated by former federal prosecutor Meehan. (Fumo's now inoperative observation about Meehan: "This will end one of our careers, and it ain't gonna be mine.") But it was surely a politically motivated coincidence - calculated to draw attention away from the prosecutorial success of Corbett's likely opponent.

What's the problem with a prosecutor wearing a politician's hat? Corbett argues that previous attorneys general in both parties have run for governor without resigning their posts. But none of those attorneys general had embarked on a years-long criminal investigation of an entire branch of state government. And Corbett's Bonusgate probe is arguably only about 25 percent complete.

But Corbett doesn't seem to get it. He isn't probing routine consumer fraud or environmental misconduct; the subject of Bonusgate is political to its core.

This leads to three big problems. First, while Corbett has a strong reputation for personal integrity, some bad guys might get the wrong idea. Criminal targets might think prosecutor Corbett can be influenced by politician Corbett. Indeed, if you were a state legislator under prosecutor Corbett's microscope, would it not seem prudent to support Corbett for governor? At a minimum, supporting him couldn't hurt your cause.

Second, in the current economic crisis, public faith in institutions has plummeted. The furor over AIG executives getting lavish, taxpayer-funded bonuses has boiled over into general distrust.

Especially in this atmosphere, citizens will wonder about Corbett's exercise of his prosecutorial discretion in deciding which legislators to charge. Is he advancing the public interest in honest government, or his personal interest in becoming governor? Even the existence of such questions can undermine public confidence in the office of the attorney general and other law-enforcement agencies.

Finally, one knee-jerk defense against charges of public corruption is that they are politically motivated. That was a central theme of Fumo's ultimately unsuccessful defense, and it is a charge that has dogged Corbett since the early days of Bonusgate.

In this context, it is not helpful that everyone Republican Corbett has charged to date is a Democrat. But even if Republican indictments in Bonusgate are imminent, as they are rumored to be, they, too, could be dismissed as political in light of Corbett's campaign. Worse, the trials of cases brought in Bonusgate could very well take place during the heat of the gubernatorial race, presenting defense attorneys with a potent argument that it really is all about politics.

By acting as both prosecutor and politician, Corbett may be undermining his own cases and his considerable success in fighting public corruption. In these circumstances, it may be that good government and good politics lead to the same conclusion: Tom Corbett has to make a choice.