March 21

Chief Justice Earl Warren, finding the Supreme Court presented with arguments concerning legal technicalities, would ask, “Yes, but is it fair?”

That question comes to mind when I think about the current phase of the federal investigation into corruption in D.C. elections.

Consider this example:

Government prosecutors enter a federal courtroom and present a plea bargain that they have worked out with a former big-bucks local and federal government contractor. The contractor agrees to plead guilty to two conspiracy counts involving illegal fundraising in federal and local elections.

The defendant not only confesses his guilt but also tells the judge that an elected official had detailed knowledge about the illegal fundraising.

The federal attorneys publicly disclose the elected official’s identity. In addition, the government, in court documents filed against the former city contractor, asserts that the elected official had asked the contractor to pay for a $425,000 get-out-the-vote campaign. The government said — and the contractor agreed — that the contractor had told the elected official that such a campaign could not be made public because the payments would exceed legal limits on individual campaign contributions and that the payments would have to pass through two other persons.

After the hearing, government prosecutors hold a news conference at which they say that the guilty contractor’s “plea gives the citizens  . . . an inside look at the underground, off-the-books scheme that have corrupted election after election, year after year.”

So what does the government do after it asserts that an elected official is involved in a conspiracy to defraud the local government by funding and concealing contributions in excess of those permitted under the law?

Nothing. Is that fair to the general public — or to the accused?

Now, let’s name names.

U.S. Attorney Ronald C. Machen and his prosecutors said last week that Mayor Vincent Gray (D) knew of an illegal off-the-books fundraising operation conducted by business executive and government contractor Jeffrey E. Thompson on behalf of Gray’s 2010 mayoral campaign. They allege, The Post reported, that Gray knew about Thompson’s conspiracy to funnel more than $600,000 in illegal contributions into the 2010 campaign.

Gray has repeatedly denied the allegations.

Here’s the rub. Machen has yet to back up his accusations against Gray with formal charges that can be presented in a court of law before a judge and jury.

Instead, prosecutors have gone public in a forum that denies Gray the opportunity to confront his accusers, to examine the government’s evidence or to cross-examine prosecution witnesses.

And all this is unfolding on the eve of a primary election in which the mayor is a candidate.

This may be amusing, perhaps even emotionally satisfying, to Gray’s detractors.

But the thought of the federal government trying someone in the court of public opinion, and not a court of law, is chilling. That scenario, unfortunately, is unfolding before our eyes.

Now, the investigative steps Machen is taking in pursuit of Gray may be procedurally correct. But are they fair?

Readers of this column know that I have been beating the drum for years about wrongdoing by D.C. public officials. I have taken a critical look at Gray’s role in payments made by his campaign aides to minor mayoral candidate Sulaimon Brown in 2010, along with the campaign’s promise of a job in a Gray administration in exchange for Brown staying in the race and continuing to attack then-Mayor Adrian Fenty. And I believe that Gray’s dodging questions about the corrupt 2010 mayoral campaign disqualifies him from reelection.

Still, it must be asked whether Machen’s prosecutorial discretion is being fairly applied in this election season.

As things stand, the timing of federal investigative steps and a generous plea deal with Thompson have advantaged some D.C. mayoral candidates and disadvantaged others. The federal investigation may even help determine who wins the April 1 primary and, possibly, the general election in November.

Is that an appropriate role for the federal government?

The public has a right to know the extent to which the integrity of the franchise was compromised in 2010 and in earlier elections. District residents also have a right to know who corrupted the franchise and whether those who conspired to withhold the truth from the public will be held accountable.

Yet with the election only days away, voters still don’t know the scope of the government’s findings about corruption in the city or, equally important, which public officials, if any, will be called to account in the place that counts — a court of law.

Is that fair?

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