The Supreme Court ruling that made it harder to convict public officials like Menendez for corruption

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 that narrowed the definition of political corruption, including what is considered official acts.

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Menendez and his wife, Nadine, were indicted last 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.

An FBI raid at Menendez’s home in 2022 turned up 13 gold bars and almost $500,000 in cash, stuffed into jackets hanging in the closet, inside bags and a safe. His defense team has argued that the senator, who is of Cuban heritage, was motivated to keep cash in his home because of trauma from having family property confiscated after the Cuban revolution.

This is the second time in nine years the senator has faced corruption charges. That first Menendez case, focused on what prosecutors described as a yearslong bribery scheme where the senator received gifts and trips in exchange for government favors, ended in a mistrial in 2017 after the jury was unable to reach a unanimous verdict. Reports at the time drew a connection between that mistrial and the Supreme Court ruling in McDonnell vs. U.S.

The 2016 Supreme Court case, McDonnell vs. U.S., 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. These gifts included loans, a Rolex watch, family vacations, almost $20,000 in clothing for McDonnell’s wife and $15,000 paid for the catering at McDonnell’s daughter’s wedding.

A jury in 2014 found that in exchange, McDonnell helped set up meetings for the dietary supplement business with state health officials and hosted an event for the company at the governor’s mansion.

McDonnell argued that these were not “official acts” under the law but rather constituent services – routine assistance that elected officials provide to the public.

FILE PHOTO: Former Virginia Governor Bob McDonnell (C) is trailed by reporters as he departs after his appeal of his 2014 corruption conviction was heard at the U.S. Supreme Court in Washington, U.S. April 27, 2016. Photo by REUTERS/Jonathan Ernst

In 2016 the Supreme Court agreed in a unanimous 8-0 decision 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.

“There is no doubt that this case is distasteful; it may be worse than that. 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,” Roberts wrote.

“A more limited interpretation of the term “official act” leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court,” he continued.

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.

To Dylan Hedtler-Gaudette, senior government affairs manager for the Project on Government Oversight, the McDonnell ruling has created a too-high bar for prosecutors and juries to clear when it comes to convicting a public official for corruption.

“A lot of us have criticized the Supreme Court in the McDonnell ruling, because there is a lot, a lot of bad behavior on the part of public officials that very much is corruption and any other definition you might want to think of,” Hedtler-Gaudette said. “But if it doesn’t just barely meet that kind of McDonnell threshold … suddenly it’s not corruption.”

He added that if corruption allegations have “to be that blatant and that explicit and that obvious, then that basically allows for all kinds of bad behavior and all kinds of shenanigans, all kinds of skullduggery, including the types of stuff that Sen. Menendez has been charged with.”

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.”

While selling favors quid pro quo could be bribery, if a public official does something favorable for a particular business because the official believes it would be good policy, that would not necessarily fall afoul of the statute.

Taub gives a hypothetical example of a lobbyist who convinces a legislator to support a bill. The lobbyist is so pleased with this outcome that they give the legislator a gift.

“That sort of ‘gift after I do something,’ unless you can directly link it to a specific act, that kind of gratuity would not be actionable,” Taub said.

Taub said the same would be true if a politician agrees to make introductions on behalf of the lobbyist.

“‘I will introduce you to all the fancy people who are the movers and shakers. I will say nice things about you to everybody.’ That’s influence peddling. That’s disgusting. But that is not against federal law,” Taub said.

Penn State professor Stanley Brand argues that public officials are owed due process and, like all criminal defendants, should be protected from prosecutorial overreach.

“These concepts … prevent the courts from stretching those statutes beyond their clear and precise definitions, and the reason for that is what the [Supreme Court] has said is, ‘You don’t want to give prosecutors that much power and discretion,’” Brand said. “Every American is entitled to not having prosecutors stretch these statutes to the breaking point.”

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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.”

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.”

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.

After his indictment on the most recent charges and facing dismal poll numbers, Menendez withdrew from New Jersey’s Democratic Senate primary. This week, he announced he was re-entering the race as an independent candidate. Hedtler-Gaudette said that while voters are the “ultimate backstop” against a candidate implicated in corruption, the chances of them doing so may be slim.

“Everything we know from the political side of literature is that incumbency and the ability to have a name you are familiar with on the ballot are the two biggest predictors of someone being elected,” Hedlter-Gaudette said.

And while the accusations against Menendez are serious, Hedlter-Gaudette said, many voters have not been paying attention to them.

“It probably hasn’t penetrated as deeply as you might think. And so a lot of people who are going to vote, you know, are just going to hear the name they’ve been seeing on the ballot for the last 25 years and check the box.”