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Bob Menendez

Sen. Bob Menendez, D-N.J., speaks with reporters on Capitol Hill in Washington, Wednesday, Jan. 17, 2018, following a meeting with the Congressional Hispanic Caucus and White House Chief of Staff John Kelly. (AP Photo/Susan Walsh)

Susan Walsh

Proving public corruption has never been easy. The demise of the federal government's case against Sen. Robert Menendez, D-N.J., is the latest sign that it's getting more difficult every day.

Federal prosecutors announced Wednesday they will not seek to retry Menendez and his co-defendant, Salomon Melgen, on federal corruption charges. Their trial this past fall ended in November with the jury hung 10 to 2 in favor of acquittal. The government charged that over a seven-year period, Melgen showered Menendez with gifts including private jet travel, luxury vacations and hundreds of thousands of dollars in political contributions. In exchange, prosecutors alleged, Menendez interceded on Melgen's behalf in various disputes he was having with the federal government.

Less than two weeks ago, prosecutors announced their intention to try again. Menendez was gearing up for a new trial that would coincide with his facing a potential re-election fight in November and a new challenger in the New Jersey Democratic primary before that. But then, on Jan. 24, the trial judge acquitted the defendants on seven of the 18 counts in the indictment, ruling that a rational jury could not find them guilty on the evidence presented at trial. Left with a dramatically diminished case, prosecutors threw in the towel.

Although the judge's order left more than half the indictment intact, it essentially gutted the case, which explains the government's about-face concerning a retrial. The judge threw out the bribery counts that alleged that Menendez acted in exchange for about $700,000 in political contributions from Melgen. Those were the big-dollar charges, the ones with perhaps the greatest likelihood of convincing a jury that Menendez agreed to exercise his official powers in exchange for the donations.

They were also the charges with the strongest proof of a quid pro quo. The evidence at trial showed that Menendez took specific actions on Melgen's behalf very close in time to when these large contributions were made - sometimes even on the same day. But when the alleged bribe is a political contribution, prosecutors can't rely solely on an inference created by the timing. The Supreme Court has set a higher bar, requiring proof of an explicit link between the donation and the official act. The Menendez judge ruled that the evidence at trial failed to clear that bar.

That left the government with a bribery case that would have focused on the private jet trips and vacation getaways. These were far less valuable, and the proof of a connection between those gifts and any acts by Menendez was much more attenuated. Most of those counts relied on the so-called "stream of benefits" theory, alleging that Melgen gave Menendez gifts over time in exchange for unspecified official acts to be taken "as opportunities arose."

The trial judge upheld this theory and ruled last week that a rational juror could have found the defendants guilty on those counts. But if the jury convicted, the defense would have vigorously challenged the stream-of-benefits theory on appeal, and recent Supreme Court cases suggest that the theory may be vulnerable. This legal vulnerability may also have affected prosecutors' decision not to proceed with the case.

For those concerned about the influence of money in politics, the legal developments in recent years have not been encouraging. As long as we have a system of privately financed campaigns for which politicians are allowed to raise money, we must require compelling evidence to charge political contributions as bribery. After all, a politician accepting a donation and later taking actions favored by the donor is simply politics as usual - it happens every day.

But requiring a higher level of proof also means that only the most blatant and clumsy corrupt officials will be subject to prosecution. Those careful enough not to make explicit deals are safe.

Gifts that are not political contributions, such as Melgen's private jet trips, can be more compelling evidence of corruption. But even those must now be linked to specific "official acts," as narrowly defined by the Supreme Court in the recent case of former Virginia Gov. Bob McDonnell. And as the Menendez case demonstrates, it is always a challenge to prove corrupt intent if neither party testifies and there is no smoking gun.

Corrupt deals are seldom clearly spelled out or reduced to writing. A great deal of corruption takes place through winks, nods and tacit understandings - and that corruption is increasingly moving beyond the reach of the criminal justice system. Access to government power is more freely available than ever to those with the means to purchase it.

These problems are not irreversible. Congress could amend federal corruption law to return to prosecutors some of the tools they used to have. The cynical among us can't help but wonder how likely it is that Congress will make such reform a priority. But if there is to be a solution, it's increasingly apparent it will need to come from the legislative and political arenas, not the courts.

Randall D. Eliason teaches white-collar criminal law at George Washington University Law School. He wrote this for The Washington Post.