Yet again the Supreme Court issued a unanimous opinion reversing the corruption convictions of public officials. This time, Justice Elena Kagan of the court’s liberal wing authored the 9-0 opinion, in Kelly v. U.S., overturning the convictions of former New Jersey state officials Bridget Kelly and Bill Baroni for their part in the 2013 “Bridgegate” scandal.
Over the past decade, the Supreme Court has made clear that all of its members view the anti-fraud and anti-corruption laws passed by Congress to have a limited reach. But the tone of the Bridgegate opinion is different.
The court did not make not a sweeping statement about the definition of corruption. It merely held that these laws don’t cover every act of corruption by public officials. If Congress wants the federal government to prosecute this kind of corruption, the opinion implies, it should pass new laws.
“They’re trying to have a dialogue with the other branches,” said Dan Weiner, deputy director of the Election Reform Program at the Brennan Center for Justice.
To that end, Weiner said, Kagan’s opinion is “more explicit here than in past cases” in declaring the corrupt act in question to be corruption.
“The evidence the jury heard no doubt shows wrongdoing — deception, corruption, abuse of power,” Kagan wrote.
That wrongdoing became the subject of a major scandal in 2013, when Kelly, Baroni and another official, David Wildstein, concocted a scheme to punish the Democratic mayor of Fort Lee for refusing to endorse the reelection campaign of Republican Gov. Chris Christie. The trio of officials, all either appointed by Christie or working for him, used their government positions to shut down two of the three toll lanes on the Fort Lee side of the George Washington Bridge, a heavily trafficked commuter route into Manhattan.
“Time for some traffic problems in Fort Lee,” Kelly wrote to Wildstein in a now-infamous email.
The three officials then attempted to cover up their plot by deploying government employees to conduct a phony traffic study that they claimed was the true reason for the lane closures. The resulting traffic problems in Fort Lee were so severe that they impeded emergency vehicles and made national news.
However, Kagan argued, “the federal fraud statutes at issue do not criminalize all such conduct.”
In other words, “not every corrupt act by state or local officials is a federal crime.”
The fraud statute at issue could not be used to prosecute Kelly and Baroni, the court said, because it is only meant for corrupt acts with the “aim to obtain money or property.”
Federal prosecutors had argued that Kelly and Baroni defrauded the state of two open toll lanes and state employees of their labor by making them conduct a pointless study. They framed the closed lanes and the workers’ labor as “property” corruptly taken by Kelly and Baroni’s fraud.
The court, however, ruled that Kelly and Baroni’s actions, while perhaps corrupt, were regulatory in nature: They did not take anyone’s money or property, or deprive them of it. The cost of the employees’ work was a “byproduct” of “a regulatory choice.”
With federal fraud laws off the table for this kind of corruption, prosecutors are left with fewer options ― perhaps other federal statutes or state anti-corruption laws; or Congress could update the fraud laws.
The ruling does not mean that public corruption can’t be punished, although prior court opinions have set tight limits for prosecutors. Most prominently, the court’s unanimous 2016 ruling in McDonnell v. U.S. greatly narrowed the definition of an “official act” taken as part of a quid pro quo arrangement.
That decision concerns Bob McDonnell, who was the Republican governor of Virginia when prosecutors charged him with bribery in 2014. He and his wife had received a stream of gifts from businessman Jonnie Williams, and in turn McDonnell helped promote Williams within the government by arranging meetings, hosting events and contacting government officials about studies related to Williams’ business. The court determined that none of these constituted “official acts.”
The sweeping McDonnell opinion led to the reversal of corruption convictions for former U.S. Rep. William Jefferson (D-La.), former New York state Assembly Speaker Sheldon Silver (D), former New York state Senate Leader Dean Skelos (R) and his son Adam Skelos, and the dismissal of charges against U.S. Sen. Bob Menendez (D-N.J.). But Silver and Skelos were both retried and convicted after the McDonnell ruling, indicating that anti-corruption convictions are not entirely impossible, even if they’ve become harder to achieve.
In this light, the ruling tossing the Bridgegate convictions looks like the court underlining its view of the limits of existing fraud and corruption laws. At some point, if the public is upset about how these laws have been interpreted, the onus should be on Congress to fix them and not just the court for its interpretation.
There is at least one member who plans to do that. Sen. Pat Leahy (D-Vt.), the ranking Democrat on the Senate Judiciary Committee, has repeatedly introduced legislation to fix the problems in federal anti-fraud and anti-corruption laws after Supreme Court rulings like the one in Kelly v. U.S.
“Over the years our nation’s anti-corruption laws have been slowly gutted, largely by court decisions, and it couldn’t be coming at a worse time,” Leahy tweeted on Thursday. “Congress needs to reverse that trend. Now. I’m working to do just that.”