Time for some traffic problems in the Supreme Court docket.
Last week, the high court announced it would hear arguments in the infamous ‘Bridgegate’ case, where officials in former New Jersey Gov. Chris Christie’s office were convicted of fraud and abuse of office for engineering a traffic jam as a form of political payback.
The court’s decision to hear the case follows two decisions over the past 10 years that have tamped down laws traditionally used to bring corruption cases against public officials.
Bridgegate could be a third notch in what legal experts described to TPM as a trend in the Supreme Court’s thinking on the topic, moving to limit the scope of statutes traditionally used to hold public officials accountable for corruption. This has stoked concern that the court may be poised to define public corruption so narrowly as to extinguish future prosecutions.
The Bridgegate appeal was filed by former Christie chief of staff Bridget Anne Kelly, who was convicted of wire fraud and abusing Port Authority resources in November 2016.
Kelly and another Christie staffer, Bill Baroni, were found guilty of shutting down traffic on the George Washington Bridge to retaliate against the Democratic mayor of Fort Lee, New Jersey, for failing to support Christie.
“Time for some traffic problems in Fort Lee,” Kelly infamously emailed a Port Authority commissioner in furtherance of the scheme.
The case — in which New Jersey public officials used government resources to retaliate against a political opponent — falls in the center of what the Supreme Court has looked at in similar cases that have reduced the scope of public corruption laws.
That is, the supposedly nebulous area between public corruption and examples where, in the court’s view, government officials have offered their constituencies services in exchange for support. Better garbage collection in wealthy areas is a fact of life in many cities, the thinking goes, but wouldn’t be grounds for prosecuting city waste officials.
But the desired attempt to reduce vagueness in federal criminal law has resulted in the significant paring down of the statutes used to prosecute public corruption.
The 2010 case involving Enron executive Jeffrey Skilling saw the court limit honest services fraud — a statute used to prosecute public corruption — to explicit bribe and kickback schemes. In a 2016 decision involving former Virginia Gov. Bob McDonnell, the court further restricted the definition of what an “official act” performed by a public servant in exchange for a bribe could be.
After McDonnell, public officials could only be prosecuted for a bribe or kickback scheme where there was an explicit quid pro quo involved, leading to criticism that the decision allowed officials to use their positions to line their pockets so long as they did not agree to a specific exchange.
The Supreme Court’s focus in deciding public corruption cases has been on this question, stating that it wants Congress to define the boundaries of political corruption.
“The problem is that this is not that case,” Fordham Law Professor Jed Shugerman told TPM about Bridgegate.
In Bridgegate, jurors were instructed that they could acquit if they found that the traffic study was a legitimate use of government resources.
“One can make the argument, like in McDonnell, that it’s important to draw a careful line about the balance between politics and policy,” Shugerman added. “But this case just pushes that line even further — the factual record shows that a jury concluded that the defendants did not believe there was any legitimate purpose for the traffic study.”
Shugerman added that the Supreme Court appears to be heading for a prosecutorial landscape where where “basically no government decision-making can ever be questioned, because even illegitimate government action is protected.”
In Bridgegate, prosecutors alleged in part that Kelly and Baroni committed fraud by using government money to pay overtime to workers who actually shut down the George Washington Bridge, a misallocation of government cash.
For some, that constitutes the kind of novel legal theory that is ripe for the court to trim down.
“The problem is that the public corruption statutes have always been susceptible to an incredibly broad interpretation,” Stanford Law Professor Bob Weisberg told TPM, adding that “the fuzziest edge” of a corruption prosecution would be accusing someone of “acting for a political rather than civic purpose.”
Weisberg argued that the court’s recent trend, and the fact that it took up the case, suggests the convictions will likely be overturned.
“The Supreme Court most of the time takes cases to reverse them,” Weisberg said, adding that, in the court’s recent view, “it’s pretty dangerous to say that corruption must be punished, because corruption can mean a million different things.”
Paul Pelletier, a former acting criminal fraud section chief at the DOJ, told TPM that “the reality is that the application of the criminal laws can’t be vague, even for politicians.”
“What the Supreme Court has always done is said that, if Congress wants to criminalize conduct, they should be clear and specific about outlawing that conduct,” he added.
But the trend on the court toward defining down conduct has arguably reduced the opportunities for public officials to be charged with corruption, potentially creating a deterrent effect against cases being brought.
Former U.S. Attorney for the Eastern District of Michigan Barb McQuade said that recent decisions had forced prosecutors “to think through whether certain kinds of public corruption is still illegal.”
“It would be another example of the court trying to narrow the playing field for what could amount to corrupt government action,” she added, of a potential Bridgegate reversal.