Has the Supreme Court Legalized Public Corruption?

The US Supreme Court may have made it harder to weed out public corruption on all levels!

Last year, after an extensive federal corruption probe, the case against New Jersey Senator Bob Menendez fell apart in the hands of the jury. At issue was the prosecution’s “stream of benefits” theory, which argues, that the steady flow of donations and gifts from a wealthy Florida doctor to the Democratic senator—and the flow of favors from the senator to the doctor—amounted to quid pro quo corruption.

Judge William Walls seemed to signal that the argument was dead on arrival by citing the recent Supreme Court ruling that has exasperated public-corruption investigators across the country. “I frankly don’t think McDonnell will allow that,” Walls told prosecutors, referring to the decision in McDonnell v. United States that fundamentally changed the standard for bribery and institutionalized corruption in the United States.

Judge Walls eventually decided to let the case proceed, declining to throw out most of Menendez’s charges. But it underscored the continuing fallout from McDonnell on corruption prosecutions. That ruling, like a series of others from the Court in recent years, allowed actions in politics as reasonable behavior for elected officials that for all intents and purposes would be cast as blatantly corrupt. The justices have portrayed these rulings as necessary on First Amendment grounds. But the long-term effects could imperil the public’s faith in democratic institutions.

When the federal judge finally declared a mistrial in Menendez’s case it basically left the status of the charges against Menendez unresolved, but allowed the New Jersey Democrat to be secure in his seat in a closely divided Senate.

What happened…

The jury’s inability to reach a unanimous decision after seven days of deliberations also delivered a blow to the Justice Department, which has faced a number of high-profile setbacks to its efforts to prosecute corruption cases since a 2016 Supreme Court decision raised the bar for proving political bribery. The jury was split 10-2 in favor of acquitting Menendez and his co-defendant, Florida eye doctor Salomon Melgen, according to one juror and an alternate who spoke to the other panelists after the mistrial ruling.

As U.S. District Judge William H. Walls declared further deliberations “futile” and dismissed the deadlocked jury for good, the senator stood at the defense table, held his palms out and directed his gaze skyward, saying quiet words to himself.

Later, a defiant Menendez addressed reporters gathered on the steps of the Newark federal courthouse. “The way this case started was wrong,” he said, his voice wavering at times. “Certain elements of this FBI could not understand or, even worse, accept that a Latino kid from Union City, Hudson County could grow up to be a United States Senator.” Standing in front of his son, Robert, and daughter, Alicia, he added: “I understand why so many Americans feel that justice is elusive. I’ve also learned about the power of the federal government and how it can crush you if it wants to.”

Though the trial was inconclusive, its end quickly reverberated to halls of power in Trenton and Washington, where Republicans had hoped the trial would lead to Menendez’s ouster and give Gov. Christie a chance to appoint his replacement, possibly the Governor himself, and boost the GOP’s two-vote majority in the Senate.

Menendez’s top political adviser,foreign lobbyist Mike Soliman, took the opportunity to add to the hubris by blatantly announcing Menendez’ bid for reelection in 2018, and for the Senator to passionately state, “For those who were digging my political grave so you could jump into my seat, I know who you are.”

What Menendez did…

Menendez took frequent trips to Melgen’s luxurious Dominican Republic villa, stayed three nights at an upscale Paris hotel courtesy of the doctor’s American Express points, and accepted hundreds of thousands of dollars in political contributions intended to benefit the senator’s 2012 campaign and other groups he supported.

Prosecutors said that over a seven-year period, Melgen plied Menendez with free trips on private jets to weekend getaways at resorts in Florida, the Dominican Republic, and Paris. Melgen gave a $300,000 check to a PAC helping Menendez’s reelection campaign in the same month that the senator intervened on his behalf with a federal agency that said Melgen had overbilled Medicare.

In another instance, Menendez urged top State Department officials to pressure the Dominican Republic government to enforce a long-dormant port security contract with a company in which Melgen held an investment interest. Around the same time, Melgan promised Menendez $60,000 in campaign donations.

At the same time, Menendez pressed officials to adopt a policy that would help Melgen in an $8.9 million billing dispute with Medicare. The senator also urged officials to take steps that would help Melgen in a business dispute in the Dominican Republic and aided the doctor in obtaining visas for his overseas girlfriends.

Prosecutors said Melgen effectively had the senator “on retainer” for his services.

Menendez argued that the gifts were “just exchanges between friends”, nothing more, and his advocacy was based on sound policy views, even if Melgen brought the issues to the senator’s attention.

The national implications of Menendez’s case were heightened by a Supreme Court decision that raised the bar for corruption cases by narrowing the definition of what can be considered an “official act” by a public official.

At least three politicians have had verdicts or sentences overturned based on the 2016 decision, which vacated the conviction of former Virginia Gov. Bob McDonnell, and Menendez’s attorneys had cited that ruling in defending the senator.

The McDonnell Decision

Gov. Bob McDonnell (R., Va.) was convicted in 2014 of receiving $175,000 in loans, gifts, and other benefits from a businessman who hoped the state would promote a nutritional supplement made by his company. But the Supreme Court overturned the case in 2016, saying prosecutors failed to prove that McDonnell engaged in “official acts” in exchange for the cash and gifts.

That ridiculous ruling has led to the reversal of convictions of two powerful state lawmakers in New York and the dismissal of most of the charges against a Louisiana congressman who had $90,000 stashed in a freezer. In August, former Rep. Chaka Fattah (D. Pa.) appealed his 10-year prison sentence in part by citing the McDonnell case.

In the Menendez case, jurors were unable to reach a verdict despite strong evidence. Federal prosecutors accused Menendez of using his office multiple times to help Salomon Melgen. The senator was charged with bribery, making false statements, conspiracy, and violating the Travel Act.

The senator said the junkets were gifts stemming from a longtime friendship and were not in exchange for political favors. (We should all have such friends.) After federal prosecutors began investigating the senator’s travels, he wrote a $58,000 check to cover the cost of two of the private jet rides to Melgen’s Dominican villa, claiming it was an oversight.

Corruption cases were difficult to prove before the Supreme Court raised the bar. Now that it has, prosecutors may be reluctant to bring charges in future cases. That will only embolden corrupt officials to see what they can get away with. Meanwhile, public trust in elected officials will continue to dwindle as government becomes more disconnected from angry voters.

Supreme Court decisions have been ever narrowing what corruption means and McDonnell is one further example of it. The case narrowed what could be defined as an “official act” under federal corruption statutes—the quo of a quid pro quo, so to speak.

Since McDonnell, it only applies to direct exercises of a government official’s power, like voting for legislation or signing an order. More seemingly mundane activities, like urging other officials to intervene in someone’s favor or setting up meetings for donors, do not qualify.

Before the decision, federal prosecutors brought cases against Democrats and Republicans alike by arguing that “official act” applied to all sorts of actions taken by public officials. Former Virginia Governor Bob McDonnell, was convicted in 2015 after taking more than $175,000 in luxury gifts, personal loans, and more from Johnnie Williams, a Virginia businessman who received favors from the governor. On appeal, McDonnell argued his actions were part of being an elected official and fell beyond what federal bribery laws could prohibit.

The Supreme Court agreed. Chief Justice John Roberts, who wrote the Court’s opinion, appeared to anticipate a public backlash. “There is no doubt that this case is distasteful; it may be worse than that,” he wrote. “But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute.” All eight justices sided with McDonnell, with the ninth seat vacant after Antonin Scalia’s death in February.

Supreme Court overturns corruption conviction of former Va. Governor McDonnell

Virginia Gov. Bob McDonnell speaks outside the Supreme Court in Washington.

At the same time, Roberts also took an exceedingly generous view of McDonnell’s activities. Where the Justice Department saw an elected official providing special perks for a lucrative donor, the chief justice saw the risk that “conscientious public officials” could be hauled in by prosecutorial zealots. “Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse,” he mused, as if to suggest judges and juries would not be able to tell the difference.

By focusing on just one aspect of the statutory definition of “official act, the Court missed the broader issues with the relationship between McDonnell and an influential donor who showered him, and his wife, with lavish gifts.

What it means

For instance, a Governor or a State Senator could tell anybody who might want to meet with them or their representatives to advocate for some program, that the cost of the meeting is $10,000. And that just goes in the Governor or Senator’s pocket. That’s not a campaign contribution, it’s not going to be reported to the public anywhere. That’s just going to be a gift to set up the meeting. That just gets you in the room. And if you don’t pay, no meeting.

Three months after the ruling, the Justice Department abandoned its efforts to prosecute McDonnell and his wife. “After carefully considering the Supreme Court’s recent decision and the principles of federal prosecution, we have made the decision not to pursue the case further,” it said in a terse press release. McDonnell celebrated the outcome, telling reporters his “wrongful” conviction was “based on a false narrative and incorrect law.”

If it hasn’t already, McDonnell could affect how prosecutors build corruption cases and limit the range of behaviors for which they’ll pursue charges. Those watching the Menendez case in New Jersey could be even more motivated to do so.

The Menendez effect

McDonnell also came down as federal prosecutors were preparing to go to trial against Menendez. At the crux of the case is his friendship with a wealthy Florida ophthalmologist and frequent campaign donor. Prosecutors depicted Menendez as a personal legislator of sorts to Melgen. He allegedly used his political influence to help obtain visas for Melgen’s girlfriends, secure contracts for him in the Dominican Republic, and intervene in a Medicare billing dispute with the Department of Health and Human Services.

Menendez’ lawyers argued the favors don’t rise to the newly heightened standard of official acts. Federal prosecutors, for their part, argued that the stream of benefits that flowed from Melgen to Menendez meet the threshold under federal law without linking specific quids to specific quos.

Behind these legal doctrines and prosecutorial theories are questions about the popular legitimacy of the republican system—about voters being able to trust that the officials they elect aren’t the puppets of the country’s richest patrons PAC’s and Unions.

What McDonnell and other recent public-corruption rulings risk are institutions where cash and favors flow freely, where consequences are exceptional, and where public vice is made indistinguishable from civic virtue.

Americans don’t expect a government of saints, but they expect their government to be able to root out the sinners in its midst.

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