In 1980, Jed Rakoff (before he took the bench) wrote that, for federal prosecutors, the mail fraud statute was “our Stradivarious, … our Louisville Slugger, … our true love.” No one would say the same about the federal statutes used to prosecute public corruption. Over time, the law has become less clear and predictable, and what constitutes bribery has become more difficult to articulate, regardless of the statute at issue. The resulting complexity has become pronounced in the case of elected politicians.

A good illustration is the recent dismissal of bribery charges against former lieutenant governor Brian Benjamin. The indictment in the Southern District of New York alleged that Benjamin, as a state senator, engaged in honest services wire fraud and bribery, and then falsified documents to conceal his crimes. The charges arose from an alleged agreement to secure a grant for a supporter’s not-for-profit organization in exchange for campaign contributions. In December, Judge J. Paul Oetken granted a defense motion to dismiss the bribery and honest services fraud charges on the ground that the indictment had failed adequately to allege an “explicit” or “express” quid pro quo understanding between Benjamin and the supporter. United States v. Benjamin, 2022 WL 17417038 (S.D.N.Y. Dec. 5, 2022).