It's also true that Justice Wylie has yet to decide whether to issue a criminal conviction against the MP and former police minister.
But Act needs to put a line under its past. How can Whyte allow an MP to stay on in Parliament that a judge had said had less credibility than Kim Dotcom?
Banks has broken the rules and has to pay the price. Act's leader should tell him so. Banks has been a disaster as an Act MP — a walking advertisement for why the souffle doesn't rise twice. At the last election he was ineptly caught on tape in what looked very much like he had been stitching up a deal with Key to get rid of then Act leader Don Brash if he got the Epsom seat. It never really got any better after that.
Whether a conviction is ultimately entered against him, whether he gets home detention, is fined or is sent to jail, staying on in Parliament when you've been found guilty of rigging an expenses return is not right. Other MPs have been shuffled out for less.
But instead of taking his former minister aside and saying "Hey mate, just do the honourable thing and resign quietly this coming week", Key has gone to town with the same "honest man" excuse he used when pressure came on him to wipe former National Cabinet minister Sir Douglas Graham's knighthood after his conviction in the Lombard Finance case.
Justice Wylie puts paid to that thinking.
He acknowledged Banks' character witnesses had given evidence to his honesty, trustworthiness and integrity. He took that evidence into account but said "logically there is always a first time for everyone who offends, and that evidence of good character is not itself a defence".
What is disturbing from reading the Wylie judgment is the lengths Banks went to to pretend he did not know the source of the two donations from Dotcom. It was quite farcical in the retelling.
Other politicians have some sympathy with Banks.
Many know election fundraising verges on the surreal with a great deal of quasi-legitimate rorts performed to distance politicians from donors when using party bagmen who are supposed to cajole and wheedle out the donations themselves and wheel the politicians out when they need to make a sale.
Many will know they have taken part in practices that are borderline. Many of them will now be watching their own backs and tightening procedures.
So they should.
What is disturbing from the Wylie judgment is the confirmation that Dotcom — a German businessman with a criminal record — had an expectation that the then sitting Auckland mayor might help him gain residency if he invested in the Team Banksie campaign.
When Banks refused to help him after the Dotcom raids, the MegaUpload founder clearly believed there was a bit more to the transaction than fabricating anonymous donations. As one witness put it, Banks told him that as much as he wished to publicly support Dotcom, it might backfire on Dotcom if "it becomes known about election support". Dotcom is not the only donor with expectations. Sir Owen Glenn had expectations that Winston Peters might make him the NZ consul to Monaco after he stumped up for some of the NZ First leader's legal fees. Peters did not come to the party either.
What Justice Wylie has also done is shoot down Banks' conspiracy theory claims. He felt Dotcom was a good witness who fronted up to his criminal history and "did not obviously seek to gild the lily in giving evidence".
The judge did not believe Banks' assertion of a conspiracy against him.
Banks is a smart man. He is intensely loyal. He needs to reflect on what has happened. Then do the decent thing and resign.
