Symposium: “Paralyzing gridlock” in criminal public-corruption law
Jennifer Ahearn is Policy Director and Noah Bookbinder is Executive Director of Citizens for Responsibility and Ethics in Washington (CREW).
“Time for some traffic problems in Fort Lee.”
These words, from a 2013 email written by petitioner Bridget Kelly, former deputy chief of staff to New Jersey Governor Chris Christie, will loom large over the Supreme Court’s consideration of Kelly’s appeal of her criminal conviction. If casual observers remember only one thing from the series of events colloquially known as “Bridgegate,” it is likely these words. They sum up the corrupt conduct of Kelly and her co-conspirators, New Jersey state officials who sought to punish the mayor of Fort Lee, New Jersey, with “paralyzing gridlock,” as the government describes it, for failing to endorse then-governor Christie’s re-election campaign.
If past is precedent, however, the Supreme Court will see these words very differently. In previous criminal public-corruption cases — not unlike in cases involving campaign finance law and corporate fraud — at least some members of the court seem to have looked quickly past the corrupt nature of the actions in question. That is precisely what they did when the court overturned the conviction of former Virginia Governor Robert McDonnell, who received hundreds of thousands of dollars in gifts while he sought to help a wealthy pharmaceutical developer pass off some R&D costs to the citizens of Virginia.
This two-decade trend started in 1999 with United States v. Sun-Diamond Growers of California. In that case, the Supreme Court erased the distinction between two public-corruption crimes, bribery and the lesser crime known as gratuities. A gratuity is a gift given to a public official because of an official act, but not necessarily in order to influence the official to act in a certain way. For example, a gratuity could be a “thank you” gift after an official takes a step favorable to the giver.
Because gifts to public officials are almost always intended to influence them, after the fact “thank you” gifts alone are relatively uncommon. But there is a space between quid-pro-quo payments and “thank you” gifts: gifts designed to create a general sense of future obligation, more along the lines of keeping a public official “on retainer.” Before the Supreme Court’s decision in Sun-Diamond, the gratuity statute was used to address such corrupt relationships under a theory known as “status gratuity.” Prosecutors charged the Sun-Diamond agricultural trade association with giving a series of gifts to the secretary of agriculture, but did not specifically connect any of the gifts to any particular act by the secretary. Instead, prosecutors alleged that by providing the series of gifts, the trade association was seeking to build a relationship that would lead to favorable official actions in the future. In Sun-Diamond, the court concluded that this conduct did not fall under the language of the gratuities statute. Instead, it held that a particular gratuity must be directly linked to a particular official act.
In theory, the case only disapproved this particular use of the gratuity statute, prosecutions based on a “status gratuity.” But in practice, the court’s opinion in Sun-Diamond has had a much more far-reaching effect: requiring for the lesser crime of gratuity the same evidence a prosecutor would need to prove the more serious crime of bribery, a quid pro quo.
After Sun-Diamond, prosecutors began to use a different theory to address these corrupt relationships: honest services fraud. Under this theory, prosecutors charged violations of a general fraud statute in which the crime defrauds the victims not necessarily of money, but of their right to the fair and honest services of the public official. Then, about a decade after Sun-Diamond, in Skilling v. United States, the court disapproved this approach as well, holding that honest services fraud can be charged only in cases that involve bribes or kickbacks. In this sense, the opinion in Skilling had the same effect as Sun-Diamond: collapsing the distinction between a lesser offense and quid-pro-quo bribery. Although the defendant in that case, Jeffrey Skilling, was charged with honest services fraud as a result of private-sector activities during the collapse of the energy company Enron in 2007, the court’s interpretation of the statute has affected cases involving public officials as well.
In recent years, the Supreme Court’s emptying of the anticorruption toolbox has only gathered pace. In 2016, the court struck down McDonnell’s conviction in an opinion further narrowing the scope of federal corruption law. McDonnell v. United States took aim at the bribery statute itself, interpreting the statute to apply only to a narrow category of actions a public official might take in exchange for a bribe. Charging a fee for a meeting or for setting up meetings with other public officials is not, in the court’s view, sufficient to support a conviction using the bribery statute. And in case an explicit quid pro quo of this type seems implausible, recall that in 2006 then-Representative Randy “Duke” Cunningham had a “menu” listing the bribes it would take for him to steer a given amount of government contracts to a bribe payer. A boat valued at $140,000 would get you $16 million in government contracts, for example.
Now, just a few years after McDonnell, it seems almost certain that Kelly v. United States will be the next case in this line. Just as McDonnell did, it appears that Kelly and her fellow defendants have succeeded in framing the case in a way that aligns with the court’s dim view of the use of criminal law to rein in corruption among public officials.
The question in Kelly, then, is less about the outcome for the petitioners and more about whether the court’s opinion will fully close off one more lane to prosecuting public corruption. If it does so, Congress should take note of a common feature in this line of cases: They rest on statutory, not constitutional, grounds. Congress must seize the opportunity to enact clear and strong criminal statutes to protect the public interest.