New Jersey Senator Bob Menendez arrives at his federal corruption trial in September.Joe Penney / Reuters
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For a few days earlier this month, it looked like the years-long corruption probe targeting New Jersey Senator Bob Menendez would fall apart seven weeks into his trial. 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.
During a hearing last week, Judge William Walls seemed to signal that argument was dead on arrival by citing a recent Supreme Court ruling that has vexed 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.
Walls eventually decided to let the case proceed, declining to throw out most of Menendez’s charges. But the close call underscores the continuing fallout from McDonnell last year. That ruling, like a series of others from the Court in recent years, recast actions once eschewed in politics as reasonable behavior for elected officials. 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.
“There’s a way in which a lot of the Supreme Court decisions have been ever narrowing what corruption means,” Tara Malloy, a staff lawyer at the Campaign Legal Center, told me. “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, a Republican, 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.
“The concern of the Court was that the prosecution not define ‘official act’—which is what the statute there required—too broadly,” Malloy said. “They thought that ‘official act,’ according to the prosecution, was basically anything a public official did by reason of their position or through the resources of their position. And the Court said, ‘No, no, no.’”
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.
Randall Eliason, a George Washington University law professor and former federal prosecutor, described McDonnell to me as “a lawyerly opinion in the worst sense of the word.” By focusing on just one aspect of the statutory definition of “official act,” he said, the Court missed the broader issues with the relationship between McDonnell and an influential donor who showered him, and his wife, with lavish gifts. He offered a jarring hypothetical that illustrates how officials could leverage their power in a post-McDonnell world:
Currently, I could set up a system where I’m a governor and I tell everybody who might want to meet with someone in my cabinet to make a pitch, or try to get a contract, or advocate for some program. I could say, “Okay, I’ll set up a meeting for you. The cost is $10,000.” And that just goes in my 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 for me, and I’ll set up the meeting. I’m not going to tell anybody what to do, I’m not going to tell them what to decide, I’ll just get you in the room. And if you don’t pay me, no meeting.
Eliason and other legal observers had thought McDonnell could prevail in his appeal, but the scale of the ruling came as a surprise. “I mean, access is valuable, right?” Eliason told me. “And you can just pay for access as long as the official doesn’t actually agree to decide something for you, but can get you in the room with the other movers and shakers who are going to do it. Now that’s not considered corruption.”