Corrupt politicians everywhere are breathing a sigh of relief this afternoon as the corruption trial involving Senator Bob Menendez (D, NJ) has ended in a mistrial.

This means that, for now, Menendez will not face prison time or any form of punishment, and he gets to keep his job in the Senate. It also means that politicians can continue their pay-for-play schemes without worrying about anti-corruption and bribery laws as the legal system has shown these laws to be more impotent than ever.

Menendez was accused of taking nearly $1 million in campaign contributions, gifts, and travel from a wealthy friend, Salomon Melgen, in exchange for performing several political favors. Menendez and Melgen faced a total of 18 charges, including conspiracy to commit bribery, honest services fraud, violating the Travel Act, and making false statements.

According to the indictment, Melgen financed luxurious vacations for Menendez in Paris and the Dominican Republic, providing him with his private jet, culinary staff, and more. He also gave nearly $1 million to Menendez in the form of campaign contributions, legal defense funding, and super PAC donations. In exchange, Menendez lobbied on Melgen’s behalf in a multi-million-dollar billing dispute with the Center for Medicare and Medicaid Services, helped to secure travel visas for several of Melgen’s girlfriends, and more.

Corruption redefined

The lack of a conviction in the Menendez case is just the latest sign of a disturbing new reality in American politics. It’s now nearly impossible to convict a politician for taking bribes or carrying out corrupt schemes.

Much of the blame belongs with the Supreme Court. In the 2016 McDonnell v. United States case, the Supreme Court overturned the corruption conviction of former Virginia Governor Bob McDonnell and declared that a public official lobbying the government on behalf of a big donor, in exchange for donations and gifts, does not amount to criminal bribery.

The court said that bribery laws only apply when public officials take something of value in exchange for influencing an “official act,” otherwise described by the court as “a formal exercise of government power.” In other words, if you’re a United States senator you can take explicit, quid-pro-quo bribes in exchange for using your immense power and influence to do anything that is not technically a part of your job description.

Furthermore, the court ruled in the McDonnell case that relationships in which public officials provide a steady “stream of benefits” for benefactors do not reach their standard for criminal corruption. A politician can be held on retainer by a donor and provide them with continual favors in the government, but they can’t be hired for a single act, the court ruled.

Test case

The Menendez trial was the first the first test of the court’s new, narrower definition of corruption, and sure enough, the Supreme Court’s ruling was a major factor in Menendez escaping a conviction.

Menendez’s lawyers argued that their client didn’t technically have power or control over the government officials he sought to influence on Melgen’s behalf, so his actions did not constitute an official government act. They also argued that Menendez provided a continual stream of benefits for Melgen in exchange for donations, so it was not possible for the government to prove that a specific payment to Menendez was tied to a specific favor for Melgen.

According to one of the jurors, these arguments were enough to convince most of the jury that Menendez was not guilty under this narrow definition of corruption. Juror Ed Norris told the Washington Post that the jury was leaning 10-2 in favor of an acquittal. Ultimately the jury remained deadlocked and the judge was forced to declare a mistrial.

Menendez is the first politician to avoid a conviction using the Supreme Court’s new definition of corruption, but several past corruption convictions have already been overturned.

New York Assembly Speaker Sheldon Silver and New York Senate Majority Leader Dean Skelos both had their 2015 corruption convictions overturned earlier this year because of the McDonnell ruling. Last month, former congressman William Jefferson, who in 2009 was discovered with a freezer full of cash and found guilty of bribery, was released from prison early because of the McDonnell decision. And of course Bob McDonnell was set free by the Supreme Court in his case.

Menendez isn’t totally in the clear yet. The government could still decide to retry his case, and the Senate is holding its own investigation into his relationship with Melgen. But following this mistrial it’s becoming increasingly difficult for the government to get a conviction in a corruption trial.

About Donald Shaw
Donald Shaw is a journalist covering lobbying and money in politics. He is based in Western Massachusetts.
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