We Know Corruption When We See It—So Why Is It So Hard to Prosecute? 10.30.26

 In 1964, the Supreme Court was trying to define a legal threshold for what constitutes "hard-core pornography" or obscenity that the First Amendment would not protect. In that effort, Supreme Court Justice Potter Stewart wrote about defining porn, “But I know it when I see it.” 

Corruption is like pornography for most of us. We know it when we see it. 

Every politician, in every election campaign, promises to get rid of Waste, Fraud, and Abuse, the three legs of corruption’s stool. Once voters cast their ballots and go back to living their lives, they stop paying attention. And those elected to end corruption scramble to wet their beaks in a swamp they can't drain, trading contracts and favors to build power and privilege. It’s not restricted to one political party. Consider how many politicians leave public service with a nest egg of cash and merchandise far larger than what they started with.

On October 19, I read an article published by The Atlantic titled “How Corruption Got This Bad,” by Leo J. Wise, a former federal prosecutor. He served 13 years as an Assistant U.S. Attorney in Maryland, including as chief of the Fraud and Public Corruption Unit from 2020 to 2023. He also served as a trial attorney in the Justice Department’s Public Integrity Section. He has the cred.

According to Wise, the Supreme Court has systematically narrowed the definition of federal anti-corruption laws over the past several decades. We’re left with a legal environment where conduct that appears blatantly corrupt to ordinary citizens—accepting lavish gifts, blatant insider stock trading, and taking gratuities from those positively impacted by votes—is no longer a crime. In other words, we may know it when we see it, but they call it less than it is to keep peace among grifting scoundrels. 

In Sun-Diamond Growers in 1999, the Supreme Court found that giving lavish gifts to a politician simply because of their official position is not illegal unless you prove a direct quid pro quo. 

In Skilling v. United States in 2010, the Court considered "honest services" fraud. Undisclosed self-dealing? Hiding big conflicts of interest from the public? The Court said no; you can prosecute public figures only for direct bribes and flat-out kickbacks.

In McDonnell v. United States in 2016,  a Virginia governor took $175,000 in gifts and loans from a corporate CEO. The governor set up meetings, threw events, and called officials for the guy. The court tossed the conviction, saying setting up meetings and making phone calls aren't "official acts," so taking cash for it isn't bribery.

In Snyder v. United States in 2024, the Court found that the primary federal criminal statute used to prosecute theft, embezzlement, and bribery involving state, local, or tribal governments that receive federal funds covers only upfront bribes, effectively legalizing "gratuities," cash and merchandise given over after an official act is completed, for state and local officials.

Finally, in Trump v. United States in 2024, the Court gave former presidents broad, constitutional immunity for so-called "official acts" while in office, giving them a free ride for corruption compared to everyone else.

Wise recognizes these rulings were not partisan. But he writes that they reflect an elite judicial institution shielding political figures from prosecution at the expense of public faith. Wise notes that Congress can overturn most of these precedents by passing explicit legislation to reclassify "official acts," outlaw illegal payoffs, reinstate self-dealing prohibitions, and restrict foreign/corporate gifts. 

An overwhelming majority of us think government corruption is widespread.

With members of Congress falling over themselves to dip their beaks in the swamp and feather their own nests, we probably won’t see anything meaningful to stop corruption any time soon. 

Under current federal disclosure rules in the Ethics in Government Act, Supreme Court justices may accept gifts, provided they report those valued over a specific threshold on their annual public financial disclosures. Gifts disclosed by various justices over the years include

travel expenses, event tickets, artwork, commemorative items, honorary gifts, book advances, royalties, and academic teaching stipends

Yet, the Supreme Court has systematically legalized political corruption by interpreting anti-corruption laws so narrowly that they are nearly impossible to enforce. 

In November 2023, the Supreme Court adopted a voluntary Code of Conduct for Justices for the first time, formalizing guidance around gifts, recusal, and extrajudicial activities. I don’t think its guardrails would be more lenient than the Court’s decision affecting other public officeholders. Corruption is a part of human nature. And it’s probably as bad now as it’s ever been. Whether it’s the kindly church-going treasurer for the local hockey association using funds to cover gambling debts or the once-idolized Bernie Madoff who ran history’s biggest pyramid scheme, we all need to remember that corruption is part of life if we’re ever to get it under control.