THE "BUMSTED DOCTRINE"

At the press conference follwing the announcement of his latest bonusgate indictments, gubernatorial candidate Tom Corbett refused to answer what should be a fairly simple question for an allegedly corruption-busting, tough guy -- "This campaigning has been going on for years and is ubiquitous...what are you going to consider criminal acts?"

This should have been very easy for Corbett to answer, especially since he and his "professional" staff constantly cite the Superior Court decision in the Habay matter. In a nutshell, "[a public official]is not allowed to direct state paid employees under his authority to conduct campaign or fundraising related work during state paid time for his personal benefit."

There is no floor in Corbett's interpretation of the Superior Court's decision. One minute of tax-payer salaried staff time is the same as 100 hours. One email is the same 100 emails. One cell-phone call is the same as 100 cell-phone calls.

Corbett refused to say there will be zero tolerance for any campaigning on state time (as the Habay decision clearly states) under his watch, and in the absence of an endorsement of a zero tolerance policy, he refused to enunciate what would get a public official in trouble.

It is obvious why Corbett won't endorse a zero tolerance policy -- it would ensare Corbett himself. No one credible in Harrisburg will say Corbett and his staff do no campaign work using taxpayer resources, especially using taxpayer funded staff. Everyone knows there are many on Office of Attorney General staff -- notably Brian Nutt, Joe Murzyn and Becky Myers -- whose only purpose is campaign related.

For the very same reason, Corbett won't outline what exactly rises to criminal activity that his "professional" investigators will pursue.

Brad Bumsted with the Pittsburgh Tribune-Review used his column today to step into the breach created by Corbett's refusal to make a clear statement on who will get arrested or not:

"Here's my [Bumsted's] view. You're in trouble with the law if:

• The activity is a pattern or pervasive in nature.

• It's directed by the boss or his lieutenant.

• There's "criminal intent" -- you know it's wrong and you have a motive to gain by it.

• You put it in writing, such as an e-mail." (Tribune Review 12/20/09)

Clearly, the "Bumsted Doctrine" allows for illegal activity to take place. In fact, quite a lot of this political activity is allowable using Bumsted's standards depending on a prosecutor's definition of a "pattern" and the word "pervasive."

Corbett would still be in serious jeopardy if the lax Bumsted Doctrine is applied to his activities, particularly his campaign's well-documented work over cell phones with the OAG.

First, the "pattern and pervasive" test. The revelation that hundreds of Corbett campaign cell phone calls were made into the Office of the Attorney General and even more troubling, hundreds of calls were made OUT OF the Office of Attorney General to his campaign cell phones certainly meets the standard of a pattern and hundreds of calls over just a few weeks is pretty pervasive.

Second, the "boss or lieutenant" test. Since Corbett himself was both making and receiving these campaign cell phone calls between himself and his OAG staff on state time, it is clear that "the boss" was directing campaign activity. Furthermore, does anyone believe that Brian Nutt wasn't directing campaign activity from the OAG?

Third, the "criminal intent" test. Corbett was elected to enforce the laws and ostensibly knows the law. Any political activity, most clearly illustrated by the hundreds of campaign cell phone calls, would definitely be recognized as criminal by Corbett as he dialed the phone and spoke with of his OAG staff at their OAG offices during the work day.

Fourth, the "writing" test. The only person with subpoena power over these matters is Corbett himself. Since no one else in Pennsylvania has the power to subpoena Corbett's OAG computers, we'll never know the amount of illegal activity occuring under Corbett's tenure. All written documentation since Corbett took over in 2005 is either destroyed or safely ensconced in the OAG untouchable from even open records requests.

Bumsted quoted Jack Treadway, a retired political science professor (what expertise he has in the law, we're not quite sure, but he still makes a good point) that "It is probably easier to tell when the line has been crossed than where it should be drawn." He is quite right!

Not only does Corbett get to set and move the line, he also gets to decide when the shifting line has been crossed. This is the very reason Corbett shouldn't be allowed to make the decision of when and how the line has been crossed as he runs for governor.

Zero tolerance or Bumsted Doctrine, it doesn't matter. Corbett will never say what is illegal or not because it protects him from entraping himself, but also because he can move the "line in the sand" back and forth as he sees fit based on who shows due deference to his campaign for governor...or who his campaign funders tell him to protect.

Most incredibly, Corbett has allowed the standards of his investigation to deteriorate to the point where, in the absence of an enunciation by Corbett of any legally consistent standard of criminality, newspaper columnists and pundits like Bumsted believe they are qualified to venture suggestions of what the standard should be themselves.