The jury tasked with hearing corruption charges against Sen. Bob Menendez (D-NJ) announced on Thursday afternoon that it was unable to reach a verdict. For the time being, at least, Menendez will not face criminal penalties — although the Justice Department could decide to retry the case before a new jury.

If the Justice Department does bring another prosecution against the senator, however, they will face a very heavy lift, similar to the one in the trial that just ended. A 2016 Supreme Court opinion effectively legalized many forms of bribery. That makes obtaining a conviction against Menendez extraordinarily difficult.

The facts of the Supreme Court’s decision in McDonnell v. United States are simply astounding. Former Virginia Gov. Bob McDonnell (R) was friends with Jonnie Williams, a wealthy businessman who ran a company that sold a nutritional supplement derived from a chemical found in tobacco products. Among other things, Walker wanted a Virginia public university to conduct a study on this supplement, in the hopes that his company could use that study to gain FDA approval for use in an anti-inflammatory drug.

Williams lavished gifts upon McDonnell and his wife while the governor was in office. At one point, Williams “took Mrs. McDonnell on a shopping trip and bought her $20,000 worth of designer clothing.” At another, “Mrs. McDonnell admired Williams’s Rolex and mentioned that she wanted to get one for Governor McDonnell. Williams asked if Mrs. McDonnell wanted him to purchase a Rolex for the Governor, and Mrs. McDonnell responded, ‘Yes, that would be nice.’” Gov. McDonnell stayed in Williams’ vacation home and drove Williams’ Ferrari.

In total, the McDonnells received over $175,000 in loans and gifts from Williams.

Meanwhile, Gov. McDonnell did a number of favors for Williams. He introduced Williams to the state’s health secretary, passed along a letter from Williams to that secretary laying out a research proposal, hosted a lunch event for Williams’ company at the governor’s mansion, and invited university researchers to that event. Williams spent the event passing out $25,000 checks that those researchers could use to compile grant proposals for research on Williams’ product.


Nevertheless, the Supreme Court tossed out McDonnell’s conviction under the same anti-corruption statute that placed Menendez in jeopardy. To convict McDonnell (or Menendez), the government had to show that he either committed or agreed to commit an “official act” in exchange for loans or gifts. But “hosting an event, meeting with other officials, or speaking with interested parties” are not, in and of themselves, enough to constitute such an act.

To sustain a conviction, prosecutors need to prove more: that an official actively pressured other officials to make a particular decision, that they agreed to make a policy decision in return for a bribe, or that they used their “official position to provide advice to another official, knowing or intending that such advice will form the basis for an ‘official act'” by that official.

Which brings us back to Sen. Menendez.

An eye doctor named Salomon Melgen allegedly gave Menendez paid vacations, flights on private jets, and free hotel stays — as well as spending about $750,000 to help Menendez’s political races. In return, Menendez allegedly met with a cabinet secretary on Melgen’s behalf, urged the State Department to pressure the Dominican Republic to take actions beneficial to Melgen, tried to stop a federal agency from taking an action that could have cost Melgen money, and “had his staffers help get tourist or student visas for three of Melgen’s foreign girlfriends.”

Menendez, in other words, appears to have said things to other government officials that would benefit Melgen, but it’s far from clear that he committed an “official act” on Melgen’s behalf — at least as that term is defined after McDonnell.


The punchline is that government officials now appear to have broad leeway to take bribes, just so long as they are careful about which services they are offering their benefactors. An official can sell access. And they can act as matchmaker between people with bribes and people with power.