DOJ Drops Menendez Indictment: What Does It Say About the Supreme Court’s Approach to Political Bribery? Not What You May Think

News today that DOJ, after a hung jury the last time, has dropped the remaining charges against Sen. Menendez (some were dropped by the judge after the first trial). Much of the reason for the problems with the charges against Menendez stem from the Supreme Court’s McDonnell case, which some read as giving a green light to all kinds of improper conduct that is now immune from prosecution.

I confess that I did not see McDonnell as having this effect when it was decided, writing that given the way the statutes were written the Supreme Court’s unanimous decision reversing the conviction was the right thing to do. And Dan Tokaji blogged about what he saw as the overreaction to McDonnell

But in prosecutions from Sheldon Silver to William Jefferson to Menendez, the ruling is being felt. It now looks like elected officials can accept gifts and engage in all kinds of odious behavior without running afoul of bribery and related rules.

But remember that the unanimous McDonnell case was about how to read the statutes governing bribery. There should be room to tighten up those statutes and to impose much stricter gift bans to deal with a lot of these problems. Indeed, stricter gift bans would have solved the problems in a number of these cases, without running afoul of the First Amendment or the Due Process Clause.

Some of these decisions are regrettable given the conduct we’ve seen from elected officials for which they face no punishment. But it would be more regrettable not to tighten up the bribery and gift rules to deal with future cases like these.


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