Plea Deals Involving State Officials

We were discussing federalism in Constitutional Law yesterday, and I explored this hypothetical in light of the Court’s anti-commandeering cases.

Suppose the Governor of Illinois is indicted on federal corruption charges.  The US Attorney offers a plea that includes a requirement that the Governor resign.  This does constitute federal interference in the internal affairs of a state government, but nobody would say that this is unconstitutional.  After all, the resignation is not a mandate.  It is a choice that the Governor can reject to go to trial.

Now let’s change this a bit.  Suppose the US Attorney includes as part of the plea deal that the Governor veto some state bills that federal prosecutors do not like, or appoint certain people to state offices (say, as a judge.)  Would that be unconstitutional?  One thought is that the answer is still no.  Only a federal mandate counts as commandeering.  Any coercion, whether through spending or other means, that retains a choice is constitutional.  Another thought is that the answer is yes because that is going beyond the traditional bounds of a plea agreement or reaches issues that are not just (or primarily) personal to the subject of the indictment the way that a resignation is.

Thoughts?

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3 Responses

  1. PrometheeFeu says:

    “Any coercion, whether through spending or other means, that retains a choice is constitutional.”

    I’m not sure that is really true. Let’s say Congress passed a law to the effect that owning a car while being the governor of a state is punished by 10 years in prison, unless either
    1) The state’s legislature has never attempted to lower the drinking age to 18 during the governor’s tenure or
    2) The governor vetoed all such bills.

    Would that be unconstitutional coercion? I want to say yes.

    The flip side is of course that states have an easy remedy. They could simply say that the governor may not make any contract binding his use of his powers as governor. So that way, the governor simply cannot accept the plea deal.

  2. nidefatt says:

    I think the judge would feel complicit in that agreement. Would the court’s participation affect the constitutional question? Isn’t the federal judge using federal power to enforce the agreement?

  3. SM says:

    Isn’t the answer that the decision to resign as Governor is a choice personal to the holder of the office? In other words, the prosecutor in Scenario #1 isn’t interfering with the State qua State, even though the State will obviously be effected. In Scenario #2 the prosecutor is actually interfering with the Governor’s exercise of his official powers.