Time for some traffic problems at the Supreme Court, which recently announced that it will hear the appeal of "Bridgegate" co-defendants Bridget Anne Kelly and Bill Baroni during its upcoming term this fall.
Bridgegate was the politically motivated closure of lanes of the George Washington Bridge by then-New Jersey Governor Chris Christie's chief of staff, Kelly, and two executives, including Baroni, at the Port Authority, the agency that oversees much of the infrastructure connecting New York and New Jersey, including the George Washington Bridge. The mayor of Fort Lee, the municipality on the New Jersey side of the bridge, had been expected to endorse Christie during his 2013 re-election campaign, but ultimately did not. As alleged retribution, the Christie allies conspired to close lanes on the bridge for a five-day "traffic study" whose only purpose was hours of gridlock in Fort Lee, stretching a 30-minute drive to four hours for thousands of commuters, and slowing response times of emergency vehicles. (The other Port Authority executive, David Wildstein, testified that the sole purpose of the traffic study was "punishing Mayor Sokolich." Kelly and Baroni maintain that they thought it was a real study.)
Kelly and Baroni were found guilty of having defrauded the Port Authority out of the money it paid employees to work on the fabricated traffic study. They were originally convicted in 2016, and a federal court of appeals upheld their conviction last fall. Kelly and Baroni argue they didn't commit fraud even if the traffic study was never an actual reason for the shutdown; their case is based on a claim that giving a nominal public-policy justification for an official decision that isn't its "subjective real reason" does not meet the traditional definition of fraud under federal law. "We don't normally treat it as a crime if a politician 'spins' something, or lies about the real reason they did something—if they claim they're just acting in the public interest, but in fact, they were doing something to please their base or hurt their opponents or whatever," says Randall Eliason, a law professor at George Washington University and former federal prosecutor. "If this fraud theory holds up, you could potentially turn almost any political decision into a crime."
Now, as the Supreme Court gives the Bridgegate defendants one more shot at making a case for the non-criminality of their politically sleazy actions, Kelly and Baroni are attempting to tap into a decades-long trend of the Supreme Court narrowing the ability of federal law enforcement to prosecute political corruption and white-collar crime. The fact that the Supreme Court is choosing to hear the case at all, says Juliet Sorensen, a law professor at Northwestern University, signals a likely continuation of that scaling-back and further enfeebling of anti-corruption laws.
Kelly's Supreme Court petition makes a slippery-slope argument, warning of the myriad forms of suspect political action that could be put at risk if the theory of prosecution she is facing were to succeed: "Consider a cabinet secretary who appoints a friend to a public post, declaring him to be best-qualified. Or a deputy mayor who orders pothole repair to reward her boss' political base, justifying it on neutral policy grounds." All of these actions would be prosecutable as fraud, she argues, based on the precedent that would be set if the Supreme Court upholds her conviction.
Fans of good government might shrug at her portent—or even embrace it. But Eliason says the underlying risk Kelly alludes to is that overly broad interpretations of corruption laws could be used in bad faith to target political opponents, with new administrations finding ways to imprison the politicians no longer in power. "So let's say a Republican president comes into power. And now has this legal theory that would allow him to go after and prosecute a whole bunch Democratic officials. Or vice versa," Eliason says. "So you try in corruption cases to separate what's been recognized as true criminal conduct from other political misbehavior, because we don't want criminal remedies for most political misconduct. Otherwise, we're becoming like a dictatorship where leaders just jail their political opponents."
This kind of reasoning underlies a series of Supreme Court decisions regarding corruption and fraud, beginning in the late 1980s. After Watergate, which ignited new public hunger for routing out political corruption, Congress passed many anti-corruption laws and expanded the ability of federal law enforcement to prosecute political corruption. "In the '70s, the federal prosecutors at the Department of Justice started to get a lot more aggressive about prosecuting organized crime," Eliason says. And they began using the new statutes to pursue organized crime, money laundering, and political corruption with previously unseen zeal.
At the time, federal bribery statutes did not apply to state and local officials, but federal fraud law did, so a popular theory for prosecuting sleazy local politicians was that of "honest services fraud." "This theory is that the defendants deprive the public of their intangible right to honest services," Sorensen says. "It was used to encompass a wide range of what you and I might term public corruption, public malfeasance, waste, fraud, and abuse." For example, in 2006, several former Chicago city officials were convicted of honest services fraud when it was proven that they had directed many city jobs to individuals who had been loyal to Mayor Richard Daly. No direct bribery or financial fraud occurred—the people hired did the job—but the city of Chicago was defrauded of its guarantee of honest hiring services.
Courts differed on what exactly constituted honest services fraud, but lower courts were consistently in agreement that it was a legitimate theory for prosecuting unethical behavior by politicians under federal fraud laws, Eliason says. The Supreme Court felt differently. Beginning its trend of rulings that have limited the definition of prosecutable public corruption, the court determined in 1987's McNally v. the United States that honest services fraud didn't exist under the law at the time.
The case concerned a kickback scheme run by the governor of Kentucky, in which he agreed to have the state purchase workman's compensation insurance from a specific company with the understanding that the company would give kickbacks to entities designated by the governor. One of those entities was run by Charles McNally, who used some of the money to purchase condos and a car for the governor and a cabinet member. A federal court found that McNally had violated the state of Kentucky's right to honest services by defrauding its "right to a full and complete disclosure of the practices and procedures employed in awarding the state's workmen's compensation insurance policy." An appeals court also upheld the conviction.
The Supreme Court disagreed, choosing to begin reading federal fraud laws strictly—as only applying to property rights, and not to squishier violations, such as the public's right to disclosure. More intangible unethical behavior was not necessarily prohibited. "Rather than construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good government for local and state officials, we read [federal fraud law] 1341 as limited in scope to the protection of property rights," Justice Byron White wrote in the 7–2 opinion. "If Congress desires to go further, it must speak more clearly than it has."
With Watergate still in the rearview mirror, Congress did desire to speak further, though—by the Supreme Court's lights—perhaps not much more clearly. Attempting to reinstate the pre-McNally accountability regime of law enforcement, Congress passed a succinctly defined statute adding the deprivation of "the intangible right of honest services" to federal fraud law. "Congress passed that statute, but they didn't explain anything about what they meant," Eliason says.
For the next two decades, many public figures were convicted of honest services fraud for depriving the state, the public, or even the stockholders of a private company of not property, but of an intangible right to honest services. However, in 2010 the Supreme Court overturned former Enron Chief Executive Officer Jeff Skilling's honest services fraud conviction, and significantly scaled back the law's scope, calling it unconstitutionally vague. The fears expressed by the justices closely resembled Kelly's argument in the Bridgegate case; in oral arguments, Justice Stephen Breyer worried that complimenting a boss' hat "so the boss will leave the room so that the worker can continue to read The Racing Form," could be prosecutable under the broader readings of the law. Under the court's new definition, honest services fraud only applied to explicit bribes and kickbacks.
In its United States v. Sun-Diamond Growers of California decision in 1999, the Supreme Court had also rolled back other anti-corruption rules concerning gratuities, ruling that gifts given to public officials must have a clear quid-pro-quo connection to official actions to be illegal. Though the Sun Diamond Growers agricultural collective had given nearly $6,000 worth of tennis tickets, luggage, and other gifts to Secretary of Agriculture Mike Espy while two regulatory issues affecting their interests were pending with the Department of Agriculture, the Supreme Court ruled that the collective's actions were legal under the gratuities law since there was no indication that the gifts explicitly led to a specific policy change. "A statute that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter," Justice Antonin Scalia wrote in the opinion.
And the Supreme Court has continued to turn axes into scalpels. In 2016, it unanimously overturned the conviction of former Virginia Governor Bob McDonnell, who had arranged meetings, attended events, and pulled strings for a businessman who had plied him with $175,000 in vacations, luxury products, and loans. The Supreme Court ruled that federal bribery law did not cover minor quid-pro-quo actions. Only significant administrative policy decisions counted.
"There's a lot of rhetoric in McDonnell that what Governor McDonnell did was unsavory and distasteful, but that it was not a crime. Rather, it was just the dirtier side of politics," Sorensen says. "I predict that is why [the Supreme Court] granted certiorari [with the Bridgegate case]. And that will be what is articulated by at least some of the justices after the case is heard."
So why has the court been pushing in this direction? Does it reflect a change in the court's left-right ideological composition? "It doesn't really break down along the lines. The court seems pretty unified," Eliason says, noting that most of the relevant decisions have been unanimous or nearly so. "Conservatives and libertarians like it, because it involves reading statutes narrowly. And liberals like it because it's making sure that criminal law is not ambiguous."
Perhaps the court has trended toward letting politics be politics and leaving the law out of it because, more than ever, our justices don't really know the business of politics. "Some people have suggested that part of the problem is we have supreme court justices who have never been in politics now. Most of them are academics," Eliason says. "We used to have justices who had been in government, been governors and things like that, and maybe had a little more realistic idea of how political corruption works."
It's also possible that the visceral shock of Watergate has now been mostly forgotten, at least among the justices. "History is cyclical. Watergate is in the really distant past," Sorensen says. "In the aftermath of Watergate, you have a lot of anti corruption, good government laws, and rules and regulations that are passed. Many of the good government laws passed in its aftermath have been watered down over time, alongside our country's outlook on it."
So perhaps, in the wake of the various corruptions of the Trump era, there could be an eventual rebound in legislative and judicial efforts toward criminal prosecution of corruption. Certainly, the public hunger is already gaining in the face of the current political situation. "I think some of the frustration that people have these days, and maybe why they tend to look for criminal remedies is they feel like there aren't political consequences anymore," Eliason says. "All this stuff is happening, and there don't seem to be any consequences. Shouldn't we do something? Lock them up!"
Unfortunately though, it's unclear if public corruption laws actually stop more corruption from happening in the future. "I doubt that they deter corruption. I think if a public official's willing to accept a bribe or a kickback, they think they're smarter than the people who got caught," says Peter Henning, law professor at Wayne State University and author of The Prosecution and Defense of Public Corruption: The Law and Legal Strategies, "It's hard to deter white-collar crime. Most white-collar defendants think they're smarter than everyone else, until they get caught. And then they plead for mercy."
If the Supreme Court continues along its trend of rulings with the Bridgegate case this fall, Kelly won't even have to.