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Quid Pro (Quo?)

Public trust in political institutions diminishes when the judiciary appears to shield those in power, adopting interpretations that are at odds with prevailing ethical standards. Whether considering the recent allegations against Senator Robert Menendez (D-NJ) or the dubious actions of Justice Clarence Thomas, a common thread emerges: a Supreme Court that has narrowed its interpretation of corruption to the point of absurdity.

Senator Bob Menendez escaped his previous federal prosecution over alleged corruption. Many view his "victory," however, as nothing more than a testament to the Supreme Court's disappearing definition of political graft. His trials ended in hung juries, with jurors apparently unpersuaded that the favors exchanged between Menendez and a prominent ophthalmologist amounted to bribery under existing law.

Although he has not been accused of criminal bribery, recent revelations about Justice Clarence Thomas point to a parallel failure of consequences. Thomas accepted extravagant vacations, property deals, and educational expenses from Republican mega-donor Harlan Crow, who is affiliated with conservative entities that want certain outcomes from the Supreme Court.

What's unsettling is that, given the current legal landscape, convicting Menendez may again prove elusive, while meaningful consequences for Thomas seem remotely unlikely. How did we get here?

At the core of the issue rests a series of Supreme Court decisions that have effectively redefined corruption. Among them is the Citizens United v. Federal Election Commission decision from 2010. This case saw the majority of justices dismissing concerns over unbridled corporate spending in political campaigns. The court maintained that only direct quid pro quo – an exchange of goods or favors for direct political action – qualified as corruption. This notably ignored all the forms of direct and indirect influence that fall short of an explicit exchange

The court suggests that influence peddling, a long tradition in Washington, is perfectly acceptable. If government officials and those who want their favor are subtle enough, they need not fear prosecution. After all, this is consistent with Thomas’s behavior and his understanding of ethics — Quid with only the “appearance” of pro quo is just business as usual at the high court.

It wasn’t always this way. Earlier interpretations saw corruption as a spectrum, recognizing the complexities of political interactions. This perspective recognized the dangers of unchecked influence, especially from corporate entities with deep pockets.

The court's perspective on corruption began to shift in 1999, with United States v. Sun-Diamond Growers of California. This unanimous decision effectively ruled that an individual or corporation could keep a public official on private retainer without violating federal gratuities statutes, so long as no specific gift was tied to a particular official act. That ruling makes it difficult to prosecute situations where an official receives prolonged financial benefits in the hope of potential future favors – a pattern eerily resonant with the Menendez allegations and the Thomas-Crow relationship.

Skilling v. United States (2010) further constrained the legal definition of corruption. This case curtailed the legal theory of honest services fraud — a type of white-collar crime wherein officials deny others their right to honest services, often due to conflicts of interest or bribery — limiting its applicability to clear-cut cases of bribes and kickbacks. It's a position that makes it challenging to prosecute more veiled forms of corruption, where there are degrees of ambiguity rather than clear transactions.

Then there's McDonnell v. United States, another case that turned heads in 2016. The Supreme Court decided that selling government access didn't qualify as "official acts" under federal bribery law. It's a distinction that seems to further protect the subtle dances of influence that play out behind closed doors. In his opinion for the majority, Chief Justice John Roberts painstakingly argued that only definitive governmental actions, like introducing legislation or shaping policy, could be deemed components of a corruption scheme. Routine political favors, such as orchestrating a meeting or making a phone call, were not covered.

The Menendez indictment points up the problem. Among the senator's alleged transgressions are communicating with a U.S. Department of Agriculture official to safeguard a co-defendant's halal certification rights for U.S. exports to Egypt, reaching out to the New Jersey attorney general's office to influence criminal matters, and advocating for the nomination of a U.S. attorney in New Jersey whom he viewed as someone he could manipulate. Furthermore, Menendez allegedly signaled to Egyptian representatives that he could control foreign military funding and equipment sales to Egypt, leveraging his influence on the Senate Foreign Relations Committee. Were these “official acts” traded for bribes or mere customary services offered by elected officials? Again –– Quid Pro Quo or just Quid?

Prosecutors seem to anticipate the uphill battle ahead, as evidenced in their careful phrasing of the charges against Menendez. Words like “pressured” feature prominently, an evident nod to Roberts' McDonnell decision, which contended that actions like pressuring another official could, under the right circumstances, still constitute evidence of an agreement to commit an “official act.”

If the hurdles were not already steep enough, Menendez’s prosecutors also face the repercussions of another recent Supreme Court decision involving Joseph Percoco, an aide to former New York Governor Andrew Cuomo –– Percoco v. U.S. (2023). Here, Justice Samuel Alito narrowed conditions under which private citizens could be convicted of depriving the government of “honest services.” In his opinion, Justice Neil Gorsuch insinuated that the entire honest-services fraud statute was ambiguous at best. This same statute forms a cornerstone of the allegations against Menendez, which claims he conspired to deprive the public of his “honest services.”

These evolving judicial interpretations involve more than just legal semantics. They are precedents that will likely shape the landscape for years to come. Bluntly put, they’ve created an environment in which corruption is easier to do, harder to prosecute, and closer to a tolerated norm in American politics.


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