Over the course of decades, the Supreme Court has legalized behavior that is poisonous to a functioning democracy. By Leo J. Wise“Isn’t that illegal?”

That’s a question I get asked a lot as a former federal prosecutor. Donald Trump, his family, and members of his administration are most often the inspiration. Last year, the Qataris gave the U.S. Defense Department a $400 million luxury jumbo jet for the president’s use, which he plans to take with him to his presidential library when he leaves office. Then Trump gave Qatar NATO-like security guarantees. Does that sound like a bribe? Exactly four days before Trump was inaugurated for the second time, the Emiratis invested $500 million in the Trump-family crypto business.

Four months later, Trump green-lighted selling them advanced AI chips, which the Biden administration had blocked out of fear that they would fall into the hands of the Chinese. Same question. But even though I hear “Isn’t that illegal?” a lot more than I used to, it isn’t a new question. Former Agriculture Secretary Mike Espy and former Virginia Governor Robert McDonnell, a Democrat and a Republican, both took lavish gifts from individuals and entities seeking their help and made national news when they were prosecuted for it. Surely that was illegal?

Common sense notwithstanding, however, the answer is no. Neither Espy nor McDonnell were held accountable, and even Trump’s seemingly egregious misbehavior likely can’t be prosecuted. That’s because starting in the 1980s, the Supreme Court has interpreted anti-corruption laws in ways so narrow as to effectively legalize flat-out corruption. These decisions put whole categories of politicians’ conduct beyond a prosecutor’s reach. It’s an absurd result. But we live in the Court’s world.

For 20 years, I prosecuted white-collar crime at the U.S. Department of Justice. My first criminal trial was Enron. My last was Hunter Biden. In between, I prosecuted on corruption charges the vice chairman of the Joint Chiefs of Staff; the mayor of Baltimore; the Baltimore police commissioner; the Baltimore City state’s attorney; and dozens of other politicians, government employees, police officers, and prison guards. I served in leadership positions at the Justice Department and on Capitol Hill focused on corruption.

I finished my DOJ career in the department’s Public Integrity Section in Washington, the specialized unit that prosecuted public corruption around the country—until February 2025, when it was effectively shut down. I was one of the prosecutors asked to dismiss the case against New York Mayor Eric Adams. Like nearly all my colleagues in Public Integrity, I declined to do so and left the department that year.

In all that time, I experienced how the Supreme Court restrained prosecutors in cases involving public officials. Even before the start of my career, the justices had begun to chip away at federal anti-corruption statutes, and this project accelerated during my tenure. When FBI agents brought me evidence of misconduct, I often had to turn the cases away, knowing I’d never be able to make charges stick. The longer I served, the harder my job became.

The first of these Supreme Court rulings was McNally v. United States, decided in 1987. In that case, a member of the Kentucky governor’s Cabinet, a local businessman, and a former chair of the Kentucky Democratic Party received hundreds of thousands of dollars in kickbacks from an insurance company that did business with the state. Prosecutors charged them with depriving the public of its right to their “honest services,” a crime under the federal mail- and wire-fraud statutes. The Court reversed their convictions and declared that the public enjoyed no such right.

Although federal courts had upheld similar convictions for more than 40 years, the Supreme Court ruled that all those courts had gotten it wrong: It declared that the mail-fraud—and, by implication, the wire-fraud—statute was limited to protecting money and property, not intangible rights such as citizens’ right to good government. Congress reacted swiftly. One year later, a broad bipartisan majority in Congress passed legislation effectively reversing the Court’s decision. But McNally is an outlier in that regard.

In 1999, in United States v. Sun-Diamond Growers of California, the Supreme Court reversed the conviction of an agricultural trade association that gave gifts—tickets to the U.S. Open, expensive luggage, even a crystal bowl—to the U.S. secretary of agriculture in the Clinton administration. The Supreme Court held that giving a politician lavish gifts because of his official position was not illegal. Rather than focusing on the conduct at hand, Justice Antonin Scalia, writing for a unanimous Court, spun out a ridiculous hypothetical—that the government’s interpretation of the statute would allow the president to be prosecuted for accepting “replica jerseys given by championship sports teams.”What that claim ignored was the reality that no Justice Department would ever authorize such a prosecution.

In Skilling v. United States, decided in 2010, the Supreme Court reversed the conviction of Jeffrey Skilling, a former CEO of Enron Corporation, for conspiring to commit honest-services fraud. I had been one of the prosecutors in Skilling’s trial. Although Skilling was the president of a publicly traded company, not a politician, he was charged with conspiracy to commit honest-services wire fraud for undisclosed self-dealing. Self-dealing is a problem whether the perpetrator is a corporate executive hiding a conflict of interest from shareholders or an elected official hiding one from voters.

Except the Supreme Court held that it wasn’t illegal. Confronted with the fact that lower courts had for years upheld honest-services-fraud convictions for undisclosed self-dealing, Justice Ruth Bader Ginsburg’s majority opinion noted the “infrequency” of those decisions and how they were not “models of clarity.”That, of course, didn’t mean those decisions were wrong. Remarkably, Ginsburg didn’t even say they were. Instead, she claimed that because bribery and kickbacks were the “basis of most honest-services prosecutions,” that’s what the statute’s application would be limited to.

In place of legal analysis, the Court resorted to a game of numbers, and the practical effect was to restrict the number of corruption cases prosecutors could bring under this statute.

In perhaps its grossest pro-corruption decision, the Supreme Court in 2016 reversed Robert McDonnell’s conviction. A jury had convicted the former governor on bribery charges for accepting $175,000 in loans and gifts from the CEO of a nutritional-supplement company that wanted Virginia’s public universities to run clinical trials on his product. The Court held that what McDonnell did for the CEO—setting up meetings, hosting events, talking to other elected officials, all to benefit his company—did not qualify as “official acts,” for which McDonnell could be bribed.

Chief Justice John Roberts, writing for a unanimous Court, adopted the most restrictive of definitions of official acts, things such as voting in the Senate or in an official committee. The decision leads directly to the question Why would a CEO give a governor that much money if these weren’t official acts? The Supreme Court didn’t offer an answer.

Then, in 2024, in Snyder v. United States, the Supreme Court reversed the conviction of the mayor of Portage, Indiana, for accepting $13,000 from a company that got more than $1 million in city contracts. Prosecutors charged him with violating a statute Congress had enacted to protect federal money administered by the states, called “666,” after its numbering in the United States Code. The indictment had charged these payments to the mayor as illegal gratuities, which is what the law calls “illegal gifts.”

In reversing his conviction, the Court held that 666 covered only bribery, not gratuities. In that year alone, approximately $1 trillion in federal funds flowed to the states. As Justice Brett Kavanaugh noted in his majority opinion, as many as 19 million state and local officials administer this money. But according to the Supreme Court, there’s nothing wrong with giving them a little something extra for the effort.

That same year, the Court decided Trump v. United States,announcing a sweeping and previously unrecognized doctrine of official-acts immunity for former presidents. Whereas the decisions discussed above left prosecutors room to pursue certain kinds of corruption, the Trump ruling means that presidents, alone among elected officials, can likely never be prosecuted for corruption. That’s because the Court, with Chief Justice Roberts writing for the majority, held that former presidents enjoy absolute immunity for actions within their “core” constitutional authority and presumptive immunity for all other official acts.

And worse, unlike the earlier decisions that interpreted statutes and that therefore Congress can reverse by passing new legislation, the Court claimed that presidential immunity was required by the Constitution itself. So only a future Supreme Court that decided to reverse the Trump decision, or an amendment to the Constitution, could cancel the get-out-of-jail-free card the Court gave presidents.

All but the last two decisions, Snyder and Trump, spanned the Court’s conservative-liberal divide. Sun-Diamond and McDonnell were even unanimous. This isn’t partisan politics; it’s political elites protecting political elites. The facts in these cases were egregious, but the Court purported to be saving hapless bureaucrats from overzealous prosecutors in the future. In any event, they haven’t.

Instead they’ve told juries of ordinary Americans that what they concluded to be corruption was not. Perhaps to try to obscure what it was doing, the Court used technical rather than normative language, something the Fordham law professor Zephyr Teachout explored more broadly in her paper “Demoralizing Elite Fraud,” in The Yale Law Journal. But that technical language can’t obscure the underlying badness of the conduct that the Court blessed.

Congress can undo much of what the Supreme Court has done: address Sun-Diamond by making it illegal to give a politician gifts because of his position; address Skilling by designating undisclosed conflicts of interest as honest-services fraud; address McDonnell by expanding the definition of official acts in the bribery statute to cover what politicians actually do all day; and address Snyder by amending 666 to cover gratuities.

As noted above, Congress already reversed the Court’s decision in McNally, and prosecutors have brought hundreds of honest-services prosecutions ever since, albeit with the limitations the Skilling decision imposed. Addressing Trump v. United States is tougher, but options still exist: Congress could close off the avenues a president can use to enrich himself and try to build his legacy by, for example, prohibiting the U.S. government from accepting gifts such as the Qatari plane, or disqualifying companies that invest in a president’s businesses or donate to his library from bidding on government contracts.

That would be a good first step, but more ambitious approaches are needed, such as Senator Elizabeth Warren’s Anti-Corruption and Public Integrity Act. Unfortunately, Congress, like the Supreme Court, has so far chosen to protect political elites—in Congress’s case, by doing nothing.

This behavior should be illegal because corruption is poison to democracy. Justice Ketanji Brown Jackson wrote in dissent in Snyder, “Greed makes governments—at every level—less responsive, less efficient, and less trustworthy from the perspective of the communities they serve.”And Americans know it. Results of a Gallup survey announced last month show that Americans’ perceptions of government corruption are at their highest in 20 years: 89 percent of adults say it is widespread.

That is a 10-percentage-point increase since 2025 and includes strong majorities of both Democrats and Republicans. Although the Court has placed politicians beyond the law’s reach, at least for now, the public gets it. Hopefully, a new Congress will too.