The Menendez Scandal Reflects The World That SCOTUS Built

Gold bars, guns, cash stuffed into a coat, and favors for a foreign government — the new indictment of U.S. Sen. Bob Menendez (D-N.J.) reads like the plot of a cheap pulp novel satirizing political graft. But the allegations against the longtime lawmaker are all too real — and the purported scheme all too predictable — in a country whose judiciary has been effectively telling politicians that corruption is perfectly legal. 

The cartoonish details of the Menendez indictment evoke memories of Abscam and the Keating Five scandals. Indeed, this affair goes way beyond the donation-for-legislation culture that has been normalized in Washington. Federal prosecutors allege an elaborate plot in which Menendez and his wife accepted “hundreds of thousands of dollars of bribes in exchange for using Menendez’s power and influence as a senator to seek to protect and enrich” a trio of businessmen “and to benefit the Arab Republic of Egypt.”

In specific, Menendez and his wife stand accused of accepting “cash, gold, payments toward a home mortgage, compensation for a low-or-no-show job, a luxury vehicle, and other things of value.” The indictment alleges that in exchange, Menendez passed non-public U.S. government information to Egyptian officials; used his position as Senate Foreign Relations Committee chairman to facilitate and “sign off on” weapons sales to that country; plotted to disrupt a criminal investigation into one of the businessmen; and persuaded the Biden administration to install a new prosecutor whom he believed he could influence on behalf of another businessman.

Menendez has denied the charges against him, depicting himself as a victim of a “smear campaign” by those who “simply cannot accept that a first-generation Latino American from humble beginnings could rise to be a U.S. Senator and serve with honor and distinction.”

But if the alleged facts in the indictment prove true, the big question is: Why would any politician think he could get away with something so brazen? 

Perhaps because Menendez knows that to secure a conviction, prosecutors will have to prove that it was illegal for him to accept the gifts in exchange for a “performance of an official act,” as the indictment says. And like every American politician, Menendez almost certainly knows that while that may seem straightforward, the corruption-plagued Supreme Court has deliberately made it anything but. 

Less than a decade ago, justices reviewed a case that echoed today’s Menendez scandal. This one involved former Virginia Gov. Bob McDonnell (R), whom a federal jury found guilty on 11 counts of conspiracy for accepting lavish gifts from a businessman in exchange for gubernatorial favors. However, Supreme Court justices unanimously overturned McDonnell’s conviction in 2016 on the grounds that those favors were permissible.

“Our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns,” wrote Chief Justice John Roberts at the time. “It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute… Setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”

The landmark decision tightened the legal definition of public corruption, increasing the difficulty for prosecutors to establish a bribery case against a political official.

Menendez has already once tried to use that precedent to halt a previous corruption indictment in a similarly grotesque case that he successfully fought to a mistrial. Recent developments may make it even easier for the New Jersey lawmaker to once again avoid jail. 

In 2020, disgraced New York politicians convinced courts to use the McDonnell precedent to overturn parts of their high-profile corruption convictions. 

Two years later, the Supreme Court struck again, overturning two other Albany corruption convictions. In one of the latter cases, the court declared that bribery charges cannot apply to government officials who — during brief hiatuses from their jobs — accept payments to elicit favors from their public-sector cronies just before they return to government employment.

Then came all the news of Supreme Court justices and their family members secretly accepting luxury gifts from billionaires and payments from law firms and conservative groups with business before the court. Taken together, those revelations suggested a self-protection motive in the court’s ongoing crusade to complicate, reduce, and ultimately halt the prosecution of corruption in every level of government.

In this era of super PACs buying elections, lawmakers legislating for their biggest donors, and judges ruling for their benefactors, the Menendez case could be a moment for the government to finally reestablish some basic, minimum commitment to the “law and order” notions that politicians love to tout. No doubt, that’s what federal prosecutors are trying to do here. 

The problem is that Supreme Court justices have for years been legalizing — and personally engaging in — similar kinds of corruption. At the same time, top Democrats are constantly assuring justices that no matter how repugnant their behavior, there will be no serious challenge to their power.

Considering that, the high court may feel emboldened to use the Menendez case not to counter Americans’ perception that the government is hopelessly rotted through with corruption, but to instead make the rot even worse. 

Averse to criminalizing the same kind of behavior they themselves engage in, justices could use the case to further whittle down the definitions of terms such as “bribery” and “official act” to almost nothing.

In short, they could make corruption not a crime, but the legal, court-approved ethos of American governance.