Prosecutorial Misuse of the Federal Conspiracy Statute in Election Law Cases

Abstract

Federal prosecutors do not like to bring misdemeanor cases in white collar criminal investigations. Experienced white collar defense lawyers will tell you this, and candid federal prosecutors will admit it. Misdemeanor charges are seen as "small potatoes" that do not impose sufficiently onerous penalties on offenders and do not justify the employment of limited prosecutorial resources. Perhaps more importantly from a prosecutor's perspective, a misdemeanor charge may be insufficient to force a low-level offender to cooperate with prosecutors and "deliver the goods" on higher-ups against whom the government may not be able to make a case without such cooperation. Although prosecutors tend to shun and ignore misdemeanor offenses, Congress has sprinkled them liberally through the United States Code (U.S.C.). In fact, it has classified entire areas of proscribed conduct as misdemeanors. One such area is election law offenses. Congress has defined as misdemeanors an entire array of "garden-variety" campaign finance violations such as contributions exceeding legal limits, contributions using corporate or labor union funds, contributions by foreign nationals, and straw contributions in the name of another.