Six years ago, senior officials in former New Jersey Gov. Chris Christie’s administration decided to retaliate against a Christie political rival by shutting down lanes on the George Washington Bridge and creating a traffic nightmare in the rival’s town. And thus, the Bridgegate scandal was born.
As was revealed in the course of the three criminal cases that resulted from this scheme, the motivations of these public officials constituted petty politics at their very worst. But should the conduct of these public officials — which included making up a phony “traffic study” to justify their actions in closing bridge lanes, and utilizing public funds to get it done — constitute a federal crime?
This is the legal question the Supreme Court is now considering as two Bridgegate defendants, Bridget Kelly and Bill Baroni, look to overturn their 2016 criminal convictions for wire fraud: Does their conduct properly fall within the parameters of the federal statute?
Wire fraud involves an intentional scheme to defraud using an interstate telephone call or electronic communication. At the Supreme Court, the Justice Department argued that — as the jury, the trial judge and the appellate court found — the defendants committed wire fraud by lying about the reason they were diverting public resources.
The defendants contest whether that is technically correct, but in oral arguments last Tuesday, they raised a broader point that appears to have gained traction with at least some of the justices.
The defendants argued, in essence, that politicians lie all the time about the motivations behind their decisions, and virtually every governmental decision involves some use of public resources, so criminalizing that behavior goes too far and would make too much conduct illegal. And on Tuesday, multiple justices indicated during the oral argument that they may agree.
There are many reasons we should all find that troubling. First, of course, is the discouraging fact that our opinion of our public servants is so low that we expect that they will sometimes lie to us, and sometimes abuse their power by misusing taxpayer money. But equally problematic is that the court may be taking another step toward depriving prosecutors of the best tools they have to prevent and prosecute corrupt government officials.
In recent years, the court has decisively narrowed the government’s ability to charge public officials with federal crimes for corruption offenses, most notably in the 2016 US v. McDonnell decision. In that case, former Virginia Gov. Bob McDonnell took hundreds of thousands of dollars from a businessman who wanted the governor to intervene on his behalf with state officials to benefit his business.
The Supreme Court decision in the McDonnell case heightened the standards for conviction on the charged offense of honest services fraud, which must involve a quid pro quo: the exchange of something of value for an “official act.” Specifically, the decision imposed a more stringent definition of what constitutes an “official act,” with Chief Justice John Roberts writing for the unanimous court that “setting up a meeting, talking to another official or organizing an event (or agreeing to do so) — without more” did not suffice. By determining that McDonnell’s actions did not constitute honest services fraud, the court indicated that it was concerned about prosecutors having too much discretion and power in the charging of these cases.
In Bridgegate, prosecutors used a different criminal fraud statute and a different legal theory than was at issue in McDonnell— honest services fraud only applies where there was a bribe or kickback involved, which wasn’t the case here. But the court on Tuesday seemed equally skeptical about the use of wire fraud in Bridgegate, even though the facts appear to fall squarely within the statutory language.
Justice Stephen Breyer, for example, noted that allowing the government to pursue this conduct using wire fraud would seem to restore the broad application the court had expressly limited in connection with the honest services fraud statute in McDonnell.
If the Supreme Court does overturn the convictions in the Bridgegate case on the basis of the statute sweeping in too much conduct by criminalizing lies and misuse of funds by politicians, what might that mean for future corruption prosecutions?
On the one hand, it might not have an enormous impact. Most corruption cases are charged differently than Bridgegate was, because they typically involve quid pro quo arrangements. But the court continuing down the road of intentionally hemming prosecutors in when it comes to enforcement of the nation’s public integrity laws is an unfortunate trend.
Investigating and prosecuting public corruption is already a massive challenge. The targets tend to be high-powered officials who know that what they are doing is wrong and needs to be hidden, which makes investigating these cases time-consuming and resource-intensive. Often state attorneys general or district attorneys, who in theory could pursue corruption charges based on state law, lack the required resources, the political will, or both, to go after these crimes. That leaves federal prosecutors, working with increasingly diminished federal laws, to fill the void.
The court should think long and hard before making sweeping pronouncements in the Bridgegate case that will take away yet another tool prosecutors can use against corrupt public officials. We need those tools now more than ever.
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