Atlantic: Has the Supreme Court Legalized Public Corruption?

Matt Ford
Oct 19, 2017
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During a hearing last week, Judge William Walls seemed to signal that argument was dead on arrival by citing a recent Supreme Court ruling that has vexed public-corruption investigators across the country. “I frankly don’t think McDonnell will allow that,” Walls told prosecutors, referring to the decision in McDonnell v. United States that fundamentally changed the standard for bribery.

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“There’s a way in which a lot of the Supreme Court decisions have been ever narrowing what corruption means,” Tara Malloy, a staff lawyer at the Campaign Legal Center, told me. “And McDonnell is one further example of it.”

If it hasn’t already, McDonnell could affect how prosecutors build corruption cases and limit the range of behaviors for which they’ll pursue charges. Those watching the Menendez case in New Jersey could be even more motivated to do so. But Malloy also warned that McDonnell fits into a broader pattern of how the Roberts Court approaches corruption in politics, and what it could do in future cases.

“We’re not simply talking about these criminal prosecutions. We’re talking about the full range of laws that attempt to protect the integrity of government,” she said, citing statutes on ethics, political transparency, and campaign finance the justices have taken a narrower view of. Malloy attributed the shift to the departure of Sandra Day O’Connor in 2005.

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