By Kenichi Serino,
@KenichiSerino
Deputy News Editor, Digital
Experts say it’s harder today than it was a decade ago for prosecutors to
build a political corruption case against lawmakers like Sen. Bob Menendez, D-N.J., who is on trial for allegedly accepting bribes in exchange for political favors.
That’s because of a landmark 2016 Supreme Court decision, McDonnell v. U.S., that narrowed the definition of political corruption, including what is considered official acts.
What happened in McDonnell vs. U.S.? The 2016 case was an appeal from a lower court ruling that found Virginia’s former Gov. Bob McDonnell guilty of accepting more than $165,000 in gifts from a businessman in exchange for favors that would help promote dietary supplements.
A jury in 2014 found him guilty. McDonnell’s appeal reached the Supreme Court.
What the Supreme Court said: McDonnell argued that these were not “official acts” under the law but rather constituent services — routine assistance that elected officials provide to the public.
The Supreme Court agreed in a unanimous 8-0 decision in 2016 that overturned his conviction. Calling McDonnell’s original case “distasteful” and “tawdry,” Chief Justice John Roberts ruled that, nevertheless, the law’s definition of “official acts” was too broad.
What’s happened since? The decision caused several former officials to challenge their corruption convictions, and moved the ball for prosecutors in terms of what they must prove.
“What the statute does makes very clear that … paying for access, paying for influence is not considered bribery,” Wayne State University Law professor Jennifer Taub said.
So what are the charges against Menendez? Menendez and his wife, Nadine, were
indicted in September on corruption charges and pleaded not guilty. Prosecutors added a charge of obstruction of justice and another charge accusing the pair of conspiring to act on behalf of Egypt while Menendez was serving as chair of the Senate Foreign Relations Committee.
This is the second time in nine years the senator has faced corruption charges. In the first case, the jury was unable to reach a unanimous verdict, ending in a mistrial. Reports at the time
drew a connection between that mistrial and the Supreme Court ruling in 2016.
Why the 2016 Supreme Court case matters: Taub argues that the public’s understanding of what constitutes corruption is much broader than the reality that will be enforced by the court.
Most people picture the public definition of corruption “as a big-size swimming pool,” Taub said. “But what qualifies under the federal statute as corruption is more like one of those backyard blow-up kiddie pools.”
Under federal statute, bribery can fundamentally be described as “a prohibition on using public office for private gain,” Taub said. “But then it gets very narrow from there.”
The bottom line: Penn State professor Stanley Brand argues that public officials are owed due process and, like all criminal defendants, should be protected from prosecutorial overreach. The Supreme Court’s 2016 decision was rooted in the idea that “every American is entitled to not having prosecutors stretch these statutes to the breaking point.”
When it comes to quid pro quo corruption, Taub said, “I do think that wanting to be absolutely clear what is considered an official act matters.”
She said it’s up to Congress to make the law more strict with explicit restrictions on, for example, gifts or payments to lawmakers or detailed language about what constitutes an official act for a public official, she said.
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