The standard created by the Supreme Court in McDonnell v. U.S. has made it close to impossible to find politicians of guilty of illegal corruption:
Five days after the Department of Justice announced that it would retry Senator Robert Menendez of New Jersey, the judge in the case all but ripped out its core. Prosecutors, he said in an 53-page opinion, had failed to prove that the senator, a Democrat, had accepted hundreds of thousands of dollars in campaign contributions in exchange for lobbying on behalf of his co-defendant.
The government’s allegations of campaign contributions for favors performed were “empty of relevant evidential fact,” Judge William Walls wrote. “There is no there there.”
The department was forced to conclude that the same was now true of its entire case. In a whiplash decision, it announced that it would not, in fact, retry Mr. Menendez, eliminating for Democrats the embarrassing prospect of having a sitting senator running for re-election while on trial for corruption.
The judge’s decision further exposed what the bribery case against Mr. Menendez and Dr. Salomon Melgen, a wealthy eye doctor from Florida and a longtime friend of the senator, lacked from the start: no key witness, no obvious quid pro quo. He left in place 11 of the 18 charges, including bribery based on trips on a private plane and other lavish gifts, as well as allegations that Mr. Menendez made false statements about those gifts — a charge even defense lawyers conceded was the hardest to beat.
But Judge Walls blew a hole in the government’s timeline and bounty of evidence, and made it hard to argue a motive for making false statements. The defense, meanwhile, still had its steady refrain: this was friendship, not corruption.
The indictment was handed down in April 2015. But less than a year later, before a trial date had even been set, the Department of Justice was dealt the first blow to their case: the Supreme Court overturned a corruption conviction against former Virginia governor Bob McDonnell, extremely narrowing the definition of official acts that would qualify for a bribery conviction.
Still, prosecutors were not overwhelmingly concerned about how the ruling affected the Menendez trial, thinking that their burden was more on proving that Mr. Menendez had accepted bribes than it was on proving that he had taken actions.
Judge Walls, though, repeatedly questioned whether the McDonnell decision would allow the introduction of certain evidence in the first trial. And the question of whether the senator’s actions were official acts added another level of complexity for the jury.
Unless you’re dumb enough to explicitly accept a payment to perform a specific action and leave a paper trail or do it in front of witnesses, you’re probably in the clear.