Ethics and legal experts warn that the Supreme Court has struck a serious blow to prosecutors’ ability to crack down on the abuse of power and public corruption.
And that’s ringing alarm bells when Donald Trump, who was convicted in May by a Manhattan jury on 34 felony counts of falsifying business records and who was hit with a $355 million penalty in a civil fraud trial in February, is leading in the presidential race.
Experts say the Supreme Court’s decision last week in Snyder v. United States, which narrowed the scope of what can be considered an illegal gratuity to a government official, could make it tougher to prosecute federal officials for accepting bribes. It also may give ammunition to embattled Sen. Bob Menendez (D-N.J.), who is on trial on federal bribery charges in New York.
And experts warn that the 6-3 majority opinion in Trump v. United States, which gave the former president immunity for crimes connected to his official acts, will make it tougher to convict Trump on charges related to the Jan. 6, 2021, attack on the U.S. Capitol and could embolden future presidents to skirt criminal laws.
They say the court’s decision in Trump v. U.S. would make it nearly impossible to convict a future president for taking a bribe once he leaves office, because it would limit the introduction of official presidential actions as evidence in a criminal trial.
Even conservative Justice Amy Coney Barrett, who concurred with most of the majority opinion in Trump’s case, dissented in part, warning that “excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution.”
“It’s going to be harder to pursue public corruption charges against public officials,” Kedric Payne, vice president and general counsel at the government ethics watchdog group Campaign Legal Center, said about the Supreme Court’s decision in Snyder.
“That’s just been a constant of many Supreme Court decisions over the past few decades,” he said.
“Even though it looks like it applies to state[-level] prosecutions, the next shoe to drop is that the whole concept of gratuities may change,” he said of last week’s decision to allow state-level public officials to accept gifts.
The decisions ratchet up tensions between the Supreme Court and Democrats in Congress, who say the court is “out of control.”
And the rulings open the court’s conservative justices to more criticism that they have a lax view of governmental and judicial ethics.
“There is this very worrying cynicism and belief that in order for public officials to do their jobs, they somehow need to be above the law. Of course, the court does not say that … but what it is doing is in a very real sense crippling one of the most meaningful checks on abuse of power,” Dan Weiner, the director of elections and government at the Brennan Center for Justice, said about the decisions on presidential immunity and gratuities to government officials.
“I think everyone has always assumed that if the president were to take bribes for official action, he or she could be prosecuted, but … the logic of this case would cripple any effort to hold the president accountable for holding bribes,” he said of Chief Justice John Roberts’s decision in the Trump immunity case.
“One thing this decision does is it further hollows out protections against high-level government corruption, and that is deeply troubling given the norms that have collapsed around self-dealing at the highest levels in recent years,” he said.
Weiner said the justices’ decision in the Trump immunity case and in Snyder threaten to “hollow out core safeguards against corruption against the highest levels of government and some of the lowest levels of government.”
Roberts ruled in Trump v. United States that former presidents “have some immunity from criminal prosecution for officials acts” and, with respect to the exercise of core constitutional powers, must have “absolute immunity.”
In Snyder v. United States, conservative Justice Brett Kavanaugh wrote that federal law does not make it a crime for state and local officials to accept gifts or “gratuities” to reward their actions. Instead, he said it is up to state and local governments to regulate gratuities to state and local officials.
That case involved James Snyder, the former mayor of Portage, Ind., who in 2014 received a $13,000 check for consulting services from a garbage truck company after the town awarded lucrative contracts to the company the previous year.
Kavanaugh’s majority opinion sparked concerns and criticism among legal experts and government watchdog groups at a time when two conservative Supreme Court justices, Clarence Thomas and Samuel Alito, have come under scrutiny for accepting lavish gifts and hospitality from wealthy benefactors.
“The trend has been for this court to continually weaken U.S. prosecutors’ ability … to prosecute corrupt public officials. This is not good,” said Virginia Canter, counsel at Citizens for Responsibility and Ethics in Washington.
She said public corruption laws and prosecutions are needed “to make sure that government officials at every level of government are being held accountable when they engage in corrupt activity.”
“It’s really the trend of the court that I’m most concerned about,” she added.
Jeffrey Robbins, a former U.S. attorney for the District of Massachusetts who is now a partner and chair of the congressional investigations practice at Saul Ewing, said the court’s decision in Snyder is “going to add fuel to those who are concerned the credibility of the court is being continually eroded.”
The Supreme Court’s decisions were met with sharp criticism from Democrats in Congress, who have demanded for months that Roberts implement an enforceable ethics code for himself and his fellow justices.
Sen. Sheldon Whitehouse (D-R.I.), the chair of the federal courts and oversight Judiciary subcommittee, reposted two media analyses criticizing the court’s decision in Snyder.
“I’m not the only one thinking that if justices were not hip-deep in smelly billionaire gifts and gratuities, they might not be rewriting anti-corruption laws to protect public officials receiving smelly gifts and gratuities,” he posted on the social platform X.
Whitehouse also slammed conservative justices Monday, arguing their decision in the Trump case would open the door for “a criminal president, who would commit treason for the right price.”
Robbins said the court’s decision in the state-level gratuities case could have an impact on Menendez’s corruption trial in the Southern District of New York.
“While he is being charged with accepting bribes, I don’t know whether or not among the evidence that has been presented to the court is evidence of postfavor compensation. If amidst all that, there is evidence that has come in of postfavor compensation, then you can expect the defense to argue that there has to be a mistrial declared,” he said.
More broadly, he said “the optics are not good, because the sweep of this decision is that compensation or renumeration or largess or benefits conveyed after an act are not crimes.”
“It doesn’t take [prominent legal theorist Laurence] Tribe to note that people will note there are justices under scrutiny for having accepted largess,” he said of how the Snyder case might impact the Supreme Court’s reputation. “It’s not going to be lost on others that this is essentially a judicial whitewash applied to postact largess.”
Robbins, however, argued that members of Congress would not be able to seize on the Supreme Court’s decision to give presidents substantial immunity for crimes related to official acts to argue in court that their own official acts deserve protection, because of the Constitution’s separation of powers between the branches.
“The decision is focused on not only separation of powers but the specific power of the executive branch and of the president in particular,” he said. “It is, as the court points out, an assessment of the scope of presidential power under the Constitution.”
Robbins predicted “we’re almost certain to see defendants in corruption cases involving other federal, state and local officials” invoke such a defense and ask, “’Why should it be different for the president than for us?’”
“I think that’s going to be very quickly dispatched by courts,” he added.