Symposium: Criminal remedies for political misconduct

Randall D. Eliason teaches white-collar criminal law at The George Washington University Law School and is a contributing columnist at the Washington Post.

The line between political mischief and criminal corruption can be blurry. It’s a treacherous area, because criminal prosecution can easily become a weapon wielded against political opponents. In part to minimize such dangers, the Supreme Court has repeatedly pushed back against federal prosecutors seeking to use expansive legal theories to prosecute political misdeeds. In Kelly v. United States, the “Bridgegate” appeal, the court appears poised to do so once again.

In September 2013 the petitioners, Bridget Anne Kelly and William Baroni, participated in a scheme to reduce the inbound lanes on the George Washington Bridge devoted to local traffic from Fort Lee, New Jersey, from three to one. This resulted in four days of massive traffic gridlock in Fort Lee. The petitioners claimed they had changed the lane configuration in order to conduct a traffic study. In fact, the evidence established they did it to punish the mayor of Fort Lee for his refusal to endorse New Jersey Governor Chris Christie for re-election.

There was no law or regulation that required three lanes to be reserved for the Fort Lee traffic; that configuration was itself the product of an earlier political deal. Baroni, a senior Port Authority official, had the authority to order the lane shift. The petitioners didn’t personally profit from the scheme. In short, they took an action that was within the scope of their authority and was otherwise lawful, but lied to conceal their true political motivation.

A jury convicted the petitioners of conspiracy, wire fraud and theft from a federally funded entity. Prosecutors argued that they deprived the Port Authority of property, primarily in the form of the salaries paid to the Port Authority employees who carried out the lane closures and traffic study. And this was fraud, the prosecutors claimed, because the petitioners deceived their superiors and the public about the reason for their actions.

Bridgegate is just the latest installment in a long-running tug of war between the Supreme Court and prosecutors pursuing public corruption. In the post-Watergate era, prosecutors increasingly relied on honest services mail or wire fraud, charging those who abused their public positions with defrauding the public of its intangible right to the official’s fair and honest services. But “honest services” was not clearly defined, leaving prosecutors free to criminalize a wide range of political misdeeds that could be deemed “dishonest” or contrary to the public interest.

The Supreme Court struck its first blow against this trend in the landmark 1987 case of McNally v. United States. Several Kentucky officials were convicted of honest services fraud for engaging in a scheme to share in the commissions earned by insurance companies that sold policies to the commonwealth. Although the defendants profited from the scheme, there was no evidence that Kentucky lost any money or that the arrangement violated Kentucky law. The court reversed their convictions and struck down the honest services fraud theory, holding that the law of fraud does not create an intangible right “to have public officials perform their duties honestly.” Honest services prosecutions, the court said, impermissibly involve the federal government in “setting standards of disclosure and good government for state and local officials.” The court held that unless and until Congress specifies otherwise, fraud was “limited in scope to the protection of property rights.”

Congress responded to McNally the following year by enacting 18 U.S.C. 1346, which expressly provides that fraud can include a “scheme or artifice to deprive another of the intangible right of honest services.” But Congress failed to define that term. This led to another two decades of what Justice Antonin Scalia once characterized as “chaos,” with prosecutors continuing to use honest services fraud to prosecute a wide variety of breaches of the public trust.

The court finally stepped in again in the 2010 case of Skilling v. United States. Facing another vagueness challenge to the honest services theory, the court this time declined to strike down the law altogether. Instead, it held that honest services fraud must be confined to core corruption: cases involving bribery and kickbacks, in which officials enrich themselves through abuse of their position. Lesser political misdeeds, however deplorable, may not be charged as honest services fraud.

Cases involving other statutes further illustrate the court’s insistence that corruption statutes be narrowly construed. For example, in the 1991 case of McCormick v. United States the court held that a state legislator could not be convicted of Hobbs Act extortion merely for taking actions that benefited a group that had contributed to his re-election. Such conduct, the court held, may appear unsavory but has never been considered unlawful and in fact is “unavoidable” so long as we have privately financed campaigns. In the 2016 case of McDonnell v. United States, the court adopted an extremely narrow view of what constitutes an “official act” that will support a conviction under federal bribery law, concerned that a broader interpretation would “cast a pall of potential prosecution” over routine interactions and favors that are an inherent part of politics.

That brings us to Bridgegate. Prosecutors couldn’t charge honest services fraud because the case does not involve bribes or kickbacks. Accordingly, the petitioners argue, prosecutors took what would have been an honest services case in pre-Skilling days and tried to dress it up as a property fraud case by claiming that the petitioners defrauded the Port Authority of the salaries of the employees who executed the scheme – including Baroni himself.

(Prosecutors have an alternative property theory mentioned but not relied upon by the U.S. Court of Appeals for the 3rd Circuit – that the petitioners deprived the Port Authority of the “right to control” the bridge lanes and toll booths. If the court addresses that at all, it will almost certainly hold this is merely a government regulatory interest, not a property right, relying on Cleveland v. United States.)

Agreeing with this fraud theory, the court of appeals repeatedly characterized the petitioners as misappropriating or converting the labor of Port Authority employees to carry out their scheme. But the cases the court cited for support all involved officials who enriched themselves by conscripting public employees to perform personal tasks, such as working for the official’s private company.

The Bridgegate employees, by contrast, were still doing Port Authority work when they carried out the lane realignment and traffic study. The petitioners did not line their own pockets by converting the public employees’ labor to their private use. There was nothing inherently improper about the work that was done; the only improper thing was the petitioners’ motive for ordering it.

A supervisor cannot be said to “defraud” the government of employee salaries when those employees are not personally enriching the supervisor and are still doing the work they were hired to do, even if they have been directed to act for a secret and improper political reason. As the petitioners point out, nearly every case of political misconduct will involve the use of some government resources or employee time. That’s particularly true if, as the government alleges here, the salary paid to the misbehaving employees themselves can be part of the calculation. If that amounts to criminal fraud, the limitations the Supreme Court imposed in Skilling and other cases will become a dead letter.

Consider two recent examples, both highlighted in the petitioners’ briefs. In the dispute over adding a citizenship question to the 2020 census, the Supreme Court ultimately ruled that the Commerce Secretary’s proffered reason for the question appeared to be “contrived.” No doubt Commerce Department personnel spent a great deal of time working to implement that question and justify adding it to the census. The theory adopted in the Bridgegate case would mean that an incoming Democratic administration in 2021 potentially could indict the secretary for fraud for converting the salaries of those employees to his own use while lying about the true reason for the question to conceal his political motives.

In its early days the Trump administration also faced multiple lawsuits over the so-called “travel ban.” Opponents alleged that the true reason for the ban was not national security, as the administration claimed, but anti-Muslim bias. Again, the same theory would allow the responsible officials to be indicted for fraud for using the labor of administration employees to implement the ban while providing a false rationale for the ban itself.

For better or worse, politicians routinely act for political reasons while purporting to be acting in the public interest. They distribute pork, exchange political favors, settle scores, pursue political agendas and engage in spin. Those political acts will sometimes cost the government money, and some may not in fact be in the public interest at all. But just as the court noted in McCormick, given the nature of politics – and the nature of politicians – some such conduct is likely unavoidable. However unseemly, it has never been thought of as criminal. The remedy for such misdeeds should be at the ballot box, not in the jury box.

As a result of Bridgegate, Baroni and Kelly lost their jobs and Christie’s political career took a nosedive. Those are the appropriate types of sanctions for such political mischief. By trying to shoehorn this case into a traditional money- or property-fraud theory, the government has sought to use criminal law to enforce an intangible right to good and honest government – the same criminal theory the Supreme Court rejected in McNally more than 30 years ago. In Kelly, the court is likely to reject it once again.