Laws distinguishing between constitutionally protected activities and illegal payments are vague. Whenever a prominent politician is indicted for corruption, questions arise. Is the prosecution part of a dangerous trend toward criminalizing policy differences? Does it endanger free speech rights of contributors? Will it constrain the legislative branch from checking the executive?
These questions are being raised in the context of the indictment of Sen. Robert Menendez, as they previously were in the ill-advised prosecutions of John Edwards, Ted Stevens, Tom DeLay and Rick Perry.
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The reason for these questions is not because there is no corruption. It is because the laws distinguishing between constitutionally protected activities and illegal payments are vague, giving prosecutors too much discretion to determine whether to prosecute questionable transactions.
Menendez is accused of accepting gifts — airline flights and hotel rooms, as well as PAC contributions — from a personal friend. The government contends that, in exchange, Menendez met with administration officials to advance his friend's interests, including helping his friend's "girlfriends" obtain visas.
But because of the long friendship, the government will have difficulty proving that the senator's efforts were specifically motivated by gifts rather than by an understandable, if not entirely praiseworthy, desire to help a friend — or to do the right thing.
The Supreme Court has recognized that political contributions are protected by the First Amendment. Until campaigns are publicly funded, candidates will seek financial support from contributors who want access. This may not be the best system, but it is our current lawful, if not commendable, system.
Such prosecutions also threaten the role of congressional oversight. Sen. Menendez has been a thorn in the administration's side on several key issues.
Senators should not have to fear that the executive branch will unleash prosecutors to go after politicians who are critical of the administration.
That is why all Americans, regardless of party, must be concerned about the criminalization of policy differences and the excessive discretion vested in those who prosecute elected officials.
Alan Dershowitz, a criminal appellate lawyer and former Harvard law professor, is author of Terror Tunnels: The Case for Israel's Just War Against Hamas.