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Why Are Corruption Cases Crumbling? Some Blame the Supreme Court

Senator Robert Menendez after his corruption trial ended in a mistrial on Thursday.Credit...Bryan Anselm for The New York Times

Oh, how the mighty have not fallen.

Sheldon Silver, the powerful former speaker of the New York State Assembly, survived his corruption prosecution in July. That’s when an appeals court overturned his bribery conviction.

The next to slip away was William J. Jefferson, a onetime Democratic congressman from Louisiana. The bulk of his conviction — which occurred after he was caught with $90,000 in his freezer — was tossed out in October.

Then, on Thursday prosecutors who specialize in graft suffered what amounted to a double disappointment: within hours of each other, two different juries declared that they were deadlocked in the high-profile corruption trials of Robert Menendez, a Democratic senator from New Jersey, and Norman Seabrook, the longtime leader of the corrections officers’ union in New York.

It would seem that the government is having trouble indicting public figures and making the charges stick. But however demoralizing this recent string of losses may have been for prosecutors and law enforcement agents, it cannot be solely blamed on them.

The law itself has also played a part.

In the last two decades, legal experts say, the United States Supreme Court has slowly eroded the country’s body of corruption laws, shifting the jurisprudential landscape in a manner that has raised the bar when it comes to prosecuting politicians accused of dabbling in dubious behavior. The experts say that conduct that was once clearly deemed to be illegal has now been redefined as politics as usual.

“For years, the court has been hacking away at the prosecutorial tools for combating bribery and corruption,” said Zephyr Teachout, a law professor at Fordham University in New York who has written extensively on the issue and who ran for governor in 2014. “Increasingly, the court has made it really hard to bring cases against anyone but the most inept criminals.”

The trend began in 1999 when a Supreme Court case called United States v. Sun Diamond Growers of California chipped away at the government’s ability to prosecute officials for taking what are known as gratuities — or minor gifts given to them by businesses or allies. The opinion found that gratuities were illegal only if the government could connect the gifts to specific favors by officials, establishing a visible quid pro quo.

In 2010, the court attacked another anti-corruption tactic, narrowing the definition of what is known as honest services fraud. The ruling in this case came as the justices reversed parts of the criminal conviction of Jeffrey K. Skilling, the former Enron chief executive who had been found guilty of charges related to his company’s collapse. Although Mr. Skilling was a private citizen, the opinion had a political effect: the newly limited fraud law had frequently been used to go after politicians who served themselves at their constituents’ expense.

But the court’s most substantial opinion on corruption came last year when it redefined the very nature of political graft in throwing out the bribery conviction of Bob McDonnell, the former Republican governor of Virginia. A jury determined that Mr. McDonnell had helped a wealthy businessman by setting him up with influential people in an effort to promote a dietary supplement he was selling. But even though the businessman had given the governor several gifts and loans, the court concluded it was not illegal. It ruled that Mr. McDonnell’s part of the arrangement — making introductions and setting up meetings — was not in fact a betrayal of his office, or what the law describes as an “official act.”

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Norman Seabrook, the former president of the corrections officers’ union in New York City; jurors deadlocked in the corruption case against him on Thursday.

Credit...Holly Pickett for The New York Times

“Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time,” Chief Justice John G. Roberts wrote in his opinion.

From the court’s point of view, the McDonnell decision was meant to put the brakes on what Justice Roberts called a “pall of potential prosecution” that could disrupt the healthy functioning of “democratic discourse.” In drafting his opinion, he quoted a group of former White House lawyers who worried that the “breathtaking expansion of public-corruption law would likely chill federal officials’ interactions with the people.”

But what has actually been chilled, experts say, is the ability of prosecutors to win convictions against men like Mr. Silver and Mr. Menendez.

“The McDonnell case opened the door to the point where selling access is now essentially legal,” said Jessica Tillipman, an assistant dean at the George Washington University Law School who teaches an anti-corruption seminar. Ms. Tillipman noted that the government has repeatedly gone after companies like Walmart and Alcoa for bribing foreign officials. “But our Supreme Court,” she added, “has made it incredibly difficult to prosecute corruption in our own country.”

Mr. Menendez, for example, stood accused of taking gifts and contributions from Salomon Melgen, a Florida eye doctor, in exchange for helping him get visas for his girlfriends and solving several complicated billing disputes. At the trial, Mr. Menendez’s lawyers mounted a McDonnell-style defense, arguing that he never performed an official act for Dr. Melgen. Though the lawyers admitted that Mr. Menendez did do favors for the doctor, they described them as an ordinary form of retail politics. The senator, they said, had simply — and innocently — offered generosity to a friend.

Lawyers for Mr. Silver, a Democrat, who was convicted two years ago of using his own position to benefit his friends, made similar arguments in winning their reversal. The McDonnell case was decided after Mr. Silver was found guilty; but even though the law has changed, federal prosecutors have promised to retry him.

The case of Mr. Seabrook is an outlier of sorts, hinting at a different challenge prosecutors face. Jona S. Rechnitz, the government’s chief witness at his trial, was, it must be said, a serial liar. Though prosecutors often use witnesses who are less than perfectly honest, Mr. Rechnitz, a real-estate developer, was especially problematic. As one of the jurors told The Daily News, “Pretty much everything he said sounded like a straight-up lie.”

In general, however, legal experts are more concerned that the Supreme Court’s rulings will make it harder not only for the government to win corruption cases, but also to maintain the verdicts on appeal. Just last month, C. Ray Nagin, the former Democratic mayor of New Orleans, challenged his corruption conviction by citing the McDonnell case.

The unfavorable changes in the law may also make the government more hesitant in bringing corruption charges. In March, for instance, federal prosecutors mentioned the McDonnell case as one of their reasons they were closing an investigation into possible misconduct by New York’s mayor, Bill de Blasio.

“Imagine being a prosecutor and looking at the last decade of Supreme Court cases,” Ms. Teachout said. “You’re basically prosecuting against a hostile court.”

A version of this article appears in print on  , Section A, Page 1 of the New York edition with the headline: Cases Crumble As Corruption Gets Redefined. Order Reprints | Today’s Paper | Subscribe

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