On Thursday, the Supreme Court overturned the criminal convictions from New Jersey’s Bridgegate scandal, which arose in 2013 when then-Gov. Chris Christie’s aides sought retribution against a political opponent. The Port Authority suddenly reduced the number of toll lanes reserved for commuters from Fort Lee, N.J., from three to one, supposedly to conduct a traffic study. But in reality, the court explained, officials wanted “to punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid.” Somehow, the justices of the Supreme Court held unanimously, in Kelly v. United States, that this violated no federal laws.

It was only the latest in a string of failed corruption cases. The Supreme Court in 2016 vacated former Virginia governor Robert McDonnell’s conviction for selling access. The Justice Department declined to retry Sen. Robert Menendez (D-N.J.) for bribery after his initial 2017 case ended in a hung jury. It does not even appear to be investigating Sen. Kelly Loeffler (R-Ga.) for selling $18.7 million in stocks after she received briefings about the coronavirus’s spread but before any stay-at-home orders were in place. Over the past decade, public-corruption prosecutions and convictions of government officials have dropped by roughly a third. And even officials sent to prison are often liberated by a beneficent patron: President Trump has pardoned Vice President Dick Cheney’s former aide Scooter Libby, onetime New York City police commissioner Bernard Kerik and Republican former California lawmaker Pat Nolan. He commuted the sentence of former Illinois governor Rod Blagojevich.

There are several reasons corrupt officeholders can walk free: Legislatures have few incentives to criminalize their own conduct; the statutes they pass can be defanged by prosecutors who decline to charge their political allies; public officials can often afford fancy lawyers to fight their cases; and courts have narrowly interpreted — or simply invalidated — public-corruption statutes. These trends have only accelerated over the past few years as Trump has normalized the problems those laws were written to fight (by, say, owning hotels where visiting foreign dignitaries stay, or sending the Secret Service to stay at his golf clubs for inflated prices). In 2019, the United States received its lowest score in eight years on Transparency International’s Corruption Perceptions Index. It has, in short, become almost impossible to put a crooked politician in prison.

All three branches of government have worsened this problem. State legislatures are not exactly known for passing robust laws to regulate the way they interact with donors and lobbyists. After a University of Illinois at Chicago study found that the Northern District of Illinois had more public-corruption cases than any other part of the United States, the state legislature introduced several bills to combat public corruption, including one to strengthen the legislative inspector general and two to bolster conflict-of-interest rules. It passed none of them. Congress has been reluctant to criminalize the activities of its state and local counterparts, where many members got their start. The bipartisan Public Corruption Prosecution Improvements Act has not gone anywhere in the past decade; more recent efforts have stalled in the Senate.

In the executive branch, state and local prosecutors may be elected or appointed by party officials — dependent on party apparatuses. This is the situation, for instance, in New York, where all but one of the cases against high-profile state legislators since 2007 were brought by the feds. (Gov. Andrew Cuomo famously convened, then disbanded, a task force to clean up Albany after he found it to be a little too aggressive.) And federal prosecutors may be driven by the same political considerations. Richard Thornburgh, the attorney general during George H.W. Bush’s administration, accused a U.S. attorney of conducting “highly visible grand jury investigations” of many Democrats in western Pennsylvania while ignoring charges implicating Republicans. An Iowa Democratic politician alleged in 2018 that former acting attorney general Matt Whitaker prosecuted him for an ordinary business transaction when Whitaker, a Republican, was a U.S. attorney in Iowa. (The jury quickly reached a verdict of not guilty.)

On the same day that the Supreme Court issued its decision in the Bridgegate case, the Trump administration signaled that its political allies are largely immune from federal prosecution, and specifically under laws that target public corruption. After the president, on Twitter, congratulated the Bridgegate defendants on their win, the top federal law enforcement official, Attorney General William P. Barr, announced that the Justice Department would drop its case against Michael Flynn, who’d been charged with lying to federal officials (he confessed) and secretly working for a foreign power before serving as Trump’s first national security adviser.

At the same time, corruption defendants are often squirrelly targets. Public officials can be sophisticated legal actors or even trained lawyers who know to avoid generating particularly damning evidence. Public officials may command more respect and receive more indulgence than the average criminal defendant from jurors, who often interpret conflicting evidence in their favor. (James Traficant, a Democratic sheriff in Ohio, represented himself in his 1983 racketeering trial, where he admitted taking bribes. Locals acquitted him — and later elected him to Congress, which finally expelled him in 2002 after another bribery conviction.)

And public-corruption cases are already difficult to prove: Politicians are supposed to respond to some political pressure and constituent demands. It’s tough to determine whether a state assemblyman met with a business owner because she was a possible voter or because she might make a huge political donation. (How might a juror respond if a former governor testifies in her defense that the meeting was entirely banal?) These defendants also regularly retain white-shoe lawyers who fight government prosecutors tenaciously and ingeniously: The Bridgegate defendants were represented at the Supreme Court by Jones Day, the same firm that represented McDonnell in his corruption case. Jones Day has previously done some legal work for the president.

The judiciary has offered little help in cleaning up our politics; the Supreme Court chips away at the laws Congress has passed, making it harder for willing prosecutors to target corrupt public officials. Two decades ago, the court ruled that the federal mail fraud statute did not prohibit government officials from abusing their regulatory authority. (In that case, the defendants had conspired to bribe state and local officials to vote in ways favorable to the video poker industry, and they had obtained video poker licenses by concealing their own interest in the business on license applications.) The justices have also held that the federal mail fraud statute does not guarantee citizens or government the right to honest services. (In that case, a state official arranged to receive a share of the state insurance agent’s commissions through kickbacks to companies he owned.)

Congress has never amended the mail fraud statute to prohibit these additional, pernicious kinds of public corruption. Even if it had, the Supreme Court might have stood in its way. In other decisions that divided the court along ideological lines, GOP-appointed justices invalidated laws designed to combat public corruption. Citizens United v. FEC struck down the limits on corporate campaign expenditures, which the federal government argued were necessary to reduce quid pro quo corruption and the appearance of corruption. The court insisted that individuals and corporations have a First Amendment right to spend money on politics, and it later invalidated the limits on aggregate political contributions that were designed to prevent the super-rich from purchasing political favors. In the court’s last public-corruption case, the justices suggested, this time unanimously, that there were “significant constitutional concerns” with prohibiting McDonnell from doling out official meetings in exchange for political donations, campaign favors and gifts. The governor and his wife received, among other things, airplane rides, designer clothing and a $50,000 loan from the chief executive of a nutritional-supplement company who asked the governor to make state universities conduct research on the supplement.

Overall, America’s political establishment is stunningly nonchalant about shady officeholders. In the closing paragraph of the Bridgegate decision, the Supreme Court observed that “not every corrupt act by state or local officials is a federal crime.” But by accepting the inevitability of corruption in politics — including at the scale of Bridgegate — we have shielded officials from accountability and made public corruption inevitable. 

Twitter: @LeahLitman