A Georgetown law professor argues that five rulings by the justices in recent years have allowed behavior that is “sketchy as hell” and meant to make the judiciary look good by contrast.
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The public corruption conviction of former Gov. Bob McDonnell of Virginia, right, was overturned by the Supreme Court in 2016.
Eight years ago, before revelations about luxury travel and gifts accepted by Justices Clarence Thomas and Samuel A. Alito Jr., the Supreme Court considered the case of a politician who had been prosecuted for public corruption after receiving similar benefits. The court threw out his conviction. In the years since, the court has overturned four other convictions in public corruption cases.
In all five of the decisions, the court’s message has been that “federal law must be interpreted so as not to cover behavior that looks, to any reasonable observer, sketchy as hell,” Josh Chafetz, a law professor at Georgetown, wrote in a new article, “Corruption and the Supreme Court,” which will be published next year in The Yale Journal of Law and the Humanities.
Taken together, he added, the decisions make a basic point and a more subtle one. The basic one, he said, is that “the justices keep letting crooked politicians off the hook.”
The more subtle one is that they “went out of their way to insist that nonjudicial politics is pervasively shot through with tawdriness.” They did so, at least in part, he wrote, to try to make the judiciary look good by contrast.
To be sure, four of the decisions were unanimous, and most expressed concern about allowing prosecutors to bring serious federal charges based on broadly worded statutes. In June, for instance, Justice Brett M. Kavanaugh, writing for six members of the court, said that making it a crime for politicians to accept after-the-fact gratuities for their actions would set “a vague and unfair trap for 19 million state and local officials.”
The first case, from 2016, concerned Bob McDonnell, a former governor of Virginia. Mr. McDonnell was convicted in 2014 after accepting travel on a private jet, a Rolex, the use of a vacation home and a Ferrari, along with substantial loans from a business executive whose company made nutritional supplements that he hoped to have tested by a state university.
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