About to Get Worse

Corruption Is About to Get Worse, Thanks to the Supreme Court

As Trump backers line up for spoils, the justices have virtually ensured there’s no way to punish backdoor deals.

Pema Levy

It’s an open question how well American democracy will withstand a second Trump presidency. Donald Trump has repeatedly promised to weaponize the government to prosecute his perceived political enemies, making politicization of the Justice Department worry Number One. The fact that he’s put forward an FBI director, Kash Patel, who has already drawn up a public political hit list hasn’t calmed these fears. Then there is Trump’s refusal to accept election results, his willingness to resort to violence, and his desire to turn the military against civilians. None of these are a recipe for democratic governance. 

But often left out of the list of risks is the likelihood of rampant public corruption. During his first term in office, Trump used his office to accrue power and to attack those he perceived as enemies—but also for personal financial gain. His cabinet officials, taking a cue from their boss, used their offices for personal gain as well.

The second time around, it’s likely to get much worse. Picture a government transformed into a system of patronage, in which bureaucrats loyal to Trump hand out contracts to friendly oligarchs. Elon Musk, who spent more than $275 million to help elect Trump president, will likely see billions in rewards in federal contracts and tax breaks, as well as the incalculable benefit of political power. Musk, of course, has also been tasked by Trump with cutting trillions in spending. This is how democracy devolves into kleptocracy—taxpayer dollars are allotted to the winners, while the taxpayers themselves see much less in return. 

Unless caught in red-handed, obvious favor trading, corrupt officials will be ensconced in safety with the knowledge that the US Supreme Court is unlikely to allow prosecutors to do anything about it. “They have essentially, single-handedly disassembled the institutional structure that allowed prosecution of political corruption, unless you can catch somebody in a really immediate quid pro quo, the sack full of cash for the particular decision,” says Sen. Sheldon Whitehouse (D-R.I.), an outspoken critic of the Roberts Court. “The problem is that you have to be an idiot to do that… When you’re playing for big numbers and messing around in Washington, you do it much more cleverly.”

While it’s impossible to imagine a Trump DOJ launching federal corruption prosecutions of his allies, if there is ever an opportunity once he leaves office to clean up the mess, future prosecutors will have to contend with the fact that the US Supreme Court has blessed the kind of corrupt politics Trump deals in.

Since 2016, the justices have issued a series of opinions that make it increasingly difficult to win cases targeting public corruption. The consistent message from the court is that political corruption is an unstoppable feature of American politics, and public officials can increasingly take bribes or kickbacks with the assurance that the justices are unlikely to uphold a conviction. This summer, as if to rule out any doubt, the justices granted the president blanket immunity for official acts. If you’re president, bribery is now legal. 

In a second Trump term, without any check from the court, “people seeking to influence federal officials…may be willing to be more aggressive in how they seek to influence the administration,” warns Virginia Canter, chief ethics counsel at Citizens for Responsibility and Ethics in Washington. “In that way, it lays the foundation for corruption.”

The trend dates back to 2016, when the Supreme Court issued an astonishing—and unanimous—opinion. Federal prosecutors had secured convictions against Bob McDonnell, the former Republican governor of Virginia, and his wife, who accepted loans, cash, and gifts from Virginia businessman Jonnie Williams in exchange for the governor’s help in boosting a dietary supplement Williams was selling. McDonnell connected Williams to Virginia university researchers, told state health care plan administrators that the supplement “would be good for” state employees, and even went so far as to host a luncheon at the governor’s mansion in which state-funded researchers were handed $25,000 checks to write proposals to study the drug—something Williams had asked for McDonnell’s help with. But, in an opinion written by Chief Justice John Roberts, the court threw out McDonnell’s conviction on the theory that none of those had been official acts. 

In 2020, the Supreme Court again let public officials off the hook. This time, it involved the infamous Bridgegate scandal, in which aides to then-New Jersey Gov. Chris Christie shut down two lanes of the George Washington Bridge in order to cause “traffic problems” in Fort Lee, where the mayor had refused to endorse Christie’s re-election. In another unanimous opinion, Justice Elena Kagan threw out the convictions because the scheme was not aimed at gaining money or property—a decision that gave a green light to other acts of political retribution.

Trump’s 2024 campaign didn’t merely hint at retribution, it publicly promised it. And while Trump usually suggested prosecuting his political detractors, Bridgegate offers another template. If a governor, member of Congress, or any other official stands up to Trump, they might also face traffic problems in their state or district—or worse forms of government harassment or revenge. And, at least under the fraud statutes at issue in the Bridgegate prosecution, it would be hard to ever punish such activity.

This June, the Supreme Court handed down another bombshell public corruption case. This time, it threw out the conviction of an Indiana mayor who solicited and received $13,000 in kickbacks after he helped steer two contracts for purchasing garbage trucks. In a 6-3 decision, the Republican appointees to the court held that the federal anti-bribery statute at issue did not outlaw gratuities. The law at issue pertained to state level officials, but if a mayor can ask for a thank-you check for awarding a contract, why can’t a federal official? 

This case was notable because it saw the Democratic appointees finally break ranks with the court’s trend of overruling public corruption convictions. After four unanimous opinions in such cases, Justice Ketanji Brown Jackson, Biden’s sole Supreme Court appointee, wrote a dissent saying the decision allowing gratuities is “one only today’s court could love.” It’s a single line that points to a serious problem: The court’s recent public corruption cases haven’t just green lit political corruption, they have also protected the justices’ own conduct.

Since the spring of 2023, ProPublica, the New York Times, and other outlets have reported on millions of dollars in gifts and luxury travel that Justice Clarence Thomas has enjoyed thanks to billionaire friends. Justice Samuel Alito, likewise, has enjoyed luxury travel on the dime of a hedge fund billionaire. These billionaires are often connected to the justices by Leonard Leo, the powerful former vice president of the conservative Federalist Society. Justices Brett Kavanaugh and Neil Gorsuch have enjoyed summer teaching jaunts in Europe, paid for by a law school that has been funded by Leo. Leo helped select the court’s GOP-appointed justices, shepherded some through their nomination fights, and his web of groups spent millions to secure their confirmations. The groups he funds also submit amicus briefs to the court, signaling to the justices how the moneyed interests that lie behind their success want them to rule.

Sen. Whitehouse believes the court’s rulings in these recent public corruption cases stem from the justices’ own desire for self-preservation. “The justices,” he says, are “taking a look at some of these cases and thinking, ‘Oh shit, that looks a lot like what we do, and because we do it, well, it can’t be wrong, because we’re so wonderful—and therefore this whole prosecution must be wrong.’”

The McDonnell case shocked government ethics experts. “Our eyes popped out when we saw that ruling,” Canter recalls. But seven years later, particularly following revelations about Thomas’ “luxurious gifts and travel,” Canter explains, “the McDonnell case made sense.”

In July 2023, the New York Times reported that shortly after ascending to the Supreme Court, Thomas joined the Horatio Alger Association, a group whose members include some of the country’s wealthiest people. Through that society, Thomas made friends with the ultra-rich, joining them on vacations and in private boxes at sporting events. Thomas also gained something he had reportedly always craved from the ruling class: acceptance and adoration. In return, Thomas gave the society use of the Supreme Court itself, hosting the group annually in the court’s hallowed chamber—providing, like McDonnell, his benefactors private use of a public building. The society, in return, fundraises off of its access to the court and Thomas.

Similarly, in light of June’s case allowing payments of thanks to public officials, it’s not hard to see the largesse enjoyed by some justices as gratuities for decisions that enrich and empower their wealthy friends—perhaps not the kind that prosecutors would come after, but certainly the kind that would lower public confidence in an independent judiciary. In his majority opinion in the gratuities case, Kavanaugh fretted that innocent public local officials like “court clerks, prison guards, [and] high school basketball coaches” might be ensnared for innocently accepting gifts from their communities. (If the ruling left any question about Kavanaugh’s sympathies, note that he has coached youth basketball.) “These public corruption cases may be cutting too close to their activities,” says Canter. “It may have made them very nervous.”

While their rulings have opened the door to more public corruption, so has the rhetoric the justices employ in those decisions, according to Josh Chafetz. As the Georgetown professor argues in an upcoming law review article, the high court has repeatedly shrugged off the behavior of public officials in these cases as the tawdry yet ordinary business of politics. In the McDonnell ruling, for example, Roberts spends a significant portion of the opinion laying out every detail of the case, before, in a twist, tossing it all aside as irrelevant. “There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns,” Roberts wrote. Instead, his concern is that a conviction against McDonnell could ensnare other officials conducting politics as usual. “What possible impression could a reader be left with,” Chafetz writes, “other than that electoral politics is gallingly tawdry across the board?” 

“It’s this idea that electoral politics is just so inherently degraded that there’s nothing that the law can do about it,” Chafetz told me. “And so they’re going to disable the law from trying.”

Perversely, Chafetz argues in his upcoming paper, the only entity held to a higher standard in the high court’s decisions is the judiciary. The result, when combined with the court’s cases unleashing a new, often untraceable, flood of campaign dollars, has been to normalize public expectations of corruption in electoral politics while elevating the judiciary—even as the justices’ own activities echo the unseemly behavior at issue in some of these cases.

In July, the Supreme Court went even further in Trump v. United States when they decided presidents are immune from criminal prosecutions for all official acts. As Justice Sonia Sotomayor lamented in her dissent, that means bribes are now kosher for the president. And unlike in McDonnell v. United States, in which the court defined official acts so narrowly as to exclude governor’s mansion luncheons, in the immunity case, any conduct remotely related to official activity is now considered immune—perhaps just because it was carried out on official stationary. “It’s maddening that in McDonnell you get this incredibly narrow conception of official acts that winds up letting a corrupt politician off the hook, then in Trump, you get an incredibly broad definition of official acts that winds up letting a corrupt politician off the hook,” says Chafetz. “The commonality there is that it lets corrupt politicians off the hook.”

Presidential immunity, coupled with the office’s unlimited pardon power, creates carte blanche for public corruption at all levels of government. But even if corrupt officials don’t receive a pardon from an abetting president, the Supreme Court has made it clear that public corruption convictions will be very hard to sustain. It’s theoretically possible that state officials might attempt to prosecute federal officials when their corrupt actions violate state laws, but Trump himself would likely be immune to such prosecutions under the Supreme Court’s reasoning in the immunity case. And any state or local prosecutor targeting a Trump-allied federal official might find himself the target of an FBI investigation under a director like Patel, or perhaps suffering from some traffic problems. Witnesses could fear the same fate.

The court could soon face new test cases that give it the opportunity to undercut other laws used to prosecute public corruption. Bob Menendez, the former New Jersey Democratic senator, was convicted this year of bribery and acting as a foreign agent, among other charges. Menendez is appealing, aided by the same lawyer who represented McDonnell and the Bridgegate defendants before the Supreme Court. Menendez’s defense hinges, in part, on his own claim to a form of immunity for members of Congress. (It remains to be seen if the justices are as keen on immunity for lawmakers as they are for presidents.) And this fall, New York City Mayor Eric Adams was indicted on federal bribery charges; while the details prosecutors described are outrageous, the charges were already curtailed by Supreme Court precedents, which may ultimately allow Adams to beat them. (Trump said he would consider a pardon for Adams.)

Ultimately, rooting out corruption will take an act of Congress. Not the incoming one, controlled by Republicans, but a hypothetical future one determined to stop public corruption. And because most of the Supreme Court’s decisions in this area have been based on interpreting laws and not Constitutional rights, as Eric Petry, an attorney at the Brennan Center for Justice, points out, “the good news is that these are things that Congress could fix by passing new statutes.” The bad news, of course, is that Congress hasn’t addressed these problems and is unlikely to do so anytime soon. 

It’s hard to see public corruption being punished in the next four years. Instead, it will likely blossom into new levels of threats, both to democratic institutions and possibly national security. (Remember, both Menendez and Adams were taking money from foreign governments.) The cavalry is not coming—it’s been reined in.