by Professor Zephyr Teachout
With the jury hopelessly deadlocked, a federal judge was forced to declare a mistrial in the bribery trial of US Sen. Bob Menendez (D-NJ). Who can blame the jury? Its members had been asked to answer some of the hardest questions in modern anti-corruption law.
Sen. Menendez’s trial — his co-defendant was the eye doctor Salomon Melgen — was fascinating not because of any scandalous revelations, but because of the lack thereof: There were no smoking-gun letters in which Menendez offers a governmental favor for rolls of cash, or wiretaps on which he is overheard offering a seat on a board in exchange for getting Melgen’s son a job. And despite what you might think reading the right-wing Twittersphere, he was not charged with anything connected to prostitutes, period. (The judge refused to allow any mention of unsupported allegations that Menendez solicited prostitutes during a Caribbean vacation.)
Instead, what was fascinating is that Menendez’s behavior is right on the razor’s edge between legal and illegal, at a time when the definition of “legal” is changing.
In the Menendez case, there was proof that the senator sought specific governmental actions (changing Medicaid reimbursement policy, for instance), so the particulars of McDonnell are not really at issue here. But the specter of McDonnell is here nonetheless: The case was tried in the shadow of a Supreme Court that repeatedly chipped away at criminal bribery laws, and seems overly concerned about protecting lawmakers, especially when engaged in activities that have become routine.
Finally, the Menendez trial comes smack in the middle of a 25-year confusion about the correct jury instructions in cases in which the quid, the thing of value, is a political donation. The Supreme Court has said that more explicit promises are required when campaign contributions are involved, but has not been clear about just how explicit. The need to clarify this area of the law has taken on new urgency since the creation of Super PACs, especially because increasing numbers of Super PAC donors are getting what they want.
Zephyr Rain Teachout is an Associate Professor of Law at Fordham University who ran for the Democratic Party nomination for governor of New York against incumbent Governor Andrew Cuomo, receiving 34% of the primary vote. In August 2015, Teachout became CEO and board chair for the campaign finance reform-oriented organization Mayday PAC, replacing Lawrence Lessig. She stepped down from this position in December 2015 to run for the United States House of Representatives in New York’s 19th congressional district. Teachout won the Democratic primary before losing to Republican John Faso in the November 8, 2016, general election.
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