NRPLUS MEMBER ARTICLE T he Supreme Court last week, in Kelly v. United States, unanimously tossed the convictions of two former aides to Chris Christie for federal wire fraud and federally funded program fraud arising out of the “Bridgegate” scandal, in which they closed lanes leading to the George Washington Bridge as political payback against a Democratic mayor who declined to endorse Christie’s reelection as governor of New Jersey. The decision is not that interesting politically: The scandal quite deservedly ended with the firing of everyone involved, and with extensive political damage to Christie that killed his presidential campaign before it started. Nothing the Court said undermines any of that.
It is also not that surprising legally, which is why it was unanimous. The Court has consistently refused to extend the various general federal fraud statutes beyond frauds to line the pockets of the defendant in one way or another, either by diverting money or property away from the victim, or by taking bribes or kickbacks. As Justice Kagan’s opinion noted, the prosecution’s theory that the Bridgegate defendants “commandeered” the Port Authority’s employees and property (bridge lanes, toll collectors) for nakedly political purposes did not actually involve theft, bribes, kickbacks, or any other form of enrichment. This was simply an abuse of public power for political ends. The Court suggested that state-law crimes in New Jersey might still cover the same conduct.
The more interesting question is whether it should be a federal crime for state officials to abuse public resources for purely political purposes. In 1987, in McNally v. United States, the Court struck down the theory of “honest services” fraud (i.e., that public officials committed mail or wire fraud by taking bribes and depriving the public of their honest services), but on the textual ground that the fraud statutes had never been written to cover the theory. Congress immediately passed a statute defining fraud for the purpose of several federal criminal statutes as including schemes “to deprive another of the intangible right of honest services.”
In 2010, former Enron CEO Jeff Skilling challenged that statute as unconstitutionally vague, and the Court responded by explicitly limiting the statute’s reach to bribes and kickbacks. The Court rejected the government’s theory that the statute covered broader forms of “undisclosed self-dealing,” and Justice Ginsburg’s opinion expressed some concerns about how a statute with that aim would work:
If Congress were to take up the enterprise of criminalizing “undisclosed self-dealing by a public official or private employee,” . . . it would have to employ standards of sufficient definiteness and specificity to overcome due process concerns. The Government proposes a standard that prohibits the “taking of official action by the employee that furthers his own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty,” so long as the employee acts with a specific intent to deceive and the undisclosed conduct could influence the victim to change its behavior . . . That formulation, however, leaves many questions unanswered. How direct or significant does the conflicting financial interest have to be? To what extent does the official action have to further that interest in order to amount to fraud? To whom should the disclosure be made and what information should it convey? These questions and others call for particular care in attempting to formulate an adequate criminal prohibition in this context.
The justices were unanimous on this point, although Justices Scalia, Thomas, and Kennedy criticized the Court for not sending the entire honest-services statute back to Congress to write it more clearly. The justices have been vigilant, and unanimously so, about other efforts to expand the scope of these prosecutions. In 2000, in Cleveland v. United States, the Court ruled that state video-poker licenses and other state permissions were not the state’s “property” such that individuals could be prosecuted for mail fraud for lying in applications to get them. Justice Ginsburg wrote:
[The prosecution’s theory] invites us to approve a sweeping expansion of federal criminal jurisdiction in the absence of a clear statement by Congress. Equating issuance of licenses or permits with deprivation of property would subject to federal mail fraud prosecution a wide range of conduct traditionally regulated by state and local authorities. We note in this regard that Louisiana’s video poker statute typically and unambiguously imposes criminal penalties for making false statements on license applications…[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes.
In 2015, the Court unanimously threw out the convictions of former Virginia governor Bob McDonnell for taking bribes in exchange for official acts. The Court rejected McDonnell’s argument that the “honest services” statute was unconstitutionally vague so long as the charges defined bribery and “official acts” specifically enough, but found that he had been prosecuted under an unduly vague and open-ended theory of “official acts.” As Chief Justice Roberts’s opinion warned:
[The bribery statute] prohibits quid pro quo corruption — the exchange of a thing of value for an “official act.” In the Government’s view, nearly anything a public official accepts — from a campaign contribution to lunch — counts as a quid; and nearly anything a public official does — from arranging a meeting to inviting a guest to an event — counts as a quo . . . But conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns — whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaig contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame . . .
The Government’s position also raises significant federalism concerns. A State [has] the prerogative to regulate the permissible scope of interactions between state officials and their constituents. Here, where a more limited interpretation of “official act” is supported by both text and precedent, we decline to construe the statute in a manner that . . . involves the Federal Government in setting standards of good government for local and state officials. (Quotation and citations omitted).
At every turn, the justices have tried to turn away from questions of Congress’s constitutional authority by reading these statutes narrowly. But at some point, Congress — and perhaps the Court — needs to decide exactly how far federal authority can and should go in regulating misgovernment in the states that do not involve clearly defined forms of self-enrichment. The McDonnell situation seems an easier call: The feds can go after direct forms of bribery, while states concerned more broadly about officials taking too many personal favors from contributors can just write conflict-of-interest statutes to prohibit accepting them. That’s a step many states have already taken.
The problem with creating a federal criminal offense for situations like Bridgegate is that it’s extremely rare to get slam-dunk proof (of the kind that existed here) that an official action was taken for political favor-trading purposes without any arguable public-policy justification and without being a part of the log-rolling process of democracy. In Bridgegate, the prosecution was able to prove that the “traffic study” pretext for the lane closures was completely pretextual: Not only did the Port Authority customarily use computer models to do traffic studies and the defendants put their true intentions in writing, but the defendants also never even bothered to read the “study” they had ordered. Moreover, Christie’s aides weren’t trying to pressure the mayor of Fort Lee to take some official action they favored for possibly good public-policy reasons: They just wanted a campaign endorsement.
It is much commoner for cases built around this theory of prosecution to end up attempting to second-guess policy choices or (as happened in the case of the ridiculous state prosecution of Rick Perry) ignore the fact that using public resources for political leverage is sometimes a tool of good government. In other words, a federal statute aimed specifically at the Bridgegate fact pattern could easily end up doing more harm than good. Which leaves us with a narrower type of statute: no using public resources solely to get campaign support. But even that is likely to involve an awful lot of gray areas.
The important thing in Bridgegate is not that it was prosecuted, but that it was exposed — and that kind of political exposure is primarily the job of journalists, whistleblowers, legislative oversight bodies, freedom-of-information requests, and adversarial politics. Sunlight is still a better disinfectant than yet another avenue for criminalizing politics.