LAW PROFESSOR: RULING ALLOWED THE SALE OF ACCESS
blamed on them.
The law itself has also played a part.
In the last two decades, legal experts say, the U.S. Supreme Court has slowly eroded the country’s body of corruption laws, shifting the jurisprudential landscape in a manner that has raised the bar when it comes to prosecuting politicians accused of dabbling in dubious behavior. The experts say conduct that was once clearly deemed to be illegal has now been redefined as politics as usual.
“For years, the court has been hacking away at the prosecutorial tools for combating bribery and corruption,” said Zephyr Teachout, a law professor at Fordham University in New York who has written extensively on the issue and who ran for governor in 2014. “Increasingly, the court has made it really hard to bring cases against anyone but the most inept criminals.”
The trend began in 1999 when a Supreme Court case called United States v. Sun Diamond Growers of California chipped away at the government’s ability to prosecute officials for taking what are known as gratuities — or minor gifts given to them by businesses or allies. The opinion found that gratuities were illegal only if the government could connect the gifts to specific favors by officials, establishing a visible quid pro quo.
In 2010, the court attacked another anti-corruption tactic, narrowing the definition of what is known as honest services fraud. The ruling in this case came as the justices reversed parts of the criminal conviction of Jeffrey K. Skilling, the former Enron chief executive who had been found guilty of charges related to his company’s collapse. Although Skilling was a private citizen, the opinion had a political effect: The newly limited fraud law had frequently been used to go after politicians who served themselves at their constituents’ expense.
But the court’s most substantial opinion on corruption came last year when it redefined the very nature of political graft in throwing out the bribery conviction of Bob Mcdonnell, the former Republican governor of Virginia. A jury determined that Mcdonnell had helped a wealthy businessman by setting him up with influential people to promote a dietary supplement he was selling. But even though the businessman had given the governor several gifts and loans, the court concluded it was not illegal. It ruled that Mcdonnell’s part of the arrangement — making introductions and setting up meetings — was not in fact a betrayal of his office, or what the law describes as an “official act.”
“Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time,” Chief Justice John G. Roberts wrote in his opinion.
From the court’s point view, the Mcdonnell decision was meant to put the brakes on what Roberts called a “pall of potential prosecution” that could disrupt the healthy functioning of “democratic discourse.” In drafting his opinion, he quoted a group of former White House lawyers who worried that the “breathtaking expansion of public-corruption law would likely chill federal officials’ interactions with the people.” But what has actually been chilled, experts say, is the ability of prosecutors to win convictions against men like Silver and Menendez.
“The Mcdonnell case opened the door to the point where selling access is now essentially legal,” said Jessica Tillipman, an assistant dean at the George Washington University Law School who teaches an anti-corruption seminar. Tillipman noted that the government has repeatedly gone after companies like Walmart and Alcoa for bribing foreign officials. “But our Supreme Court,” she added, “has made it incredibly difficult to prosecute corruption in our own country.”
Menendez, for example, stood accused of taking gifts and contributions from Salomon Melgen, a Florida eye doctor, in exchange for helping him get visas for his girlfriends and solving several complicated billing disputes. At the trial, Menendez’s lawyers mounted a Mcdonnell-style defense, arguing that he never performed an official act for Melgen. Though the lawyers admit- ted that Menendez did do favors for the doctor, they described them as an ordinary form of retail politics. The senator, they said, had simply — and innocently — offered generosity to a friend.
In general, however, legal experts are more concerned that the Supreme Court’s rulings will make it harder not only for the government to win corruption cases, but also to maintain the verdicts on appeal. Just last month, C. Ray Nagin, the former Democratic mayor of New Orleans, challenged his corruption conviction by citing the Mcdonnell case.
The unfavorable changes in the law may also make the government more hesitant in bringing corruption charges. In March, for instance, federal prosecutors mentioned the Mcdonnell case as one of their reasons they were closing an investigation into possible misconduct by New York’s mayor, Bill de Blasio.
“Imagine being a prosecutor and looking at the last decade of Supreme Court cases,” Teachout said. “You’re basically prosecuting against a hostile court.”