In 2013, allies of New Jersey Governor Chris Christie’s administration engineered and implemented a scheme to punish the Mayor of Fort Lee for his failure to endorse Christie’s re-election. They blocked lanes at the George Washington Bridge, deliberately causing a massive traffic jam in the town, thus wasting people’s time and endangering public safety. When the motives for the officials’ actions became clear, they lost their jobs. In addition, they were successfully prosecuted for the federal crimes of wire fraud and fraud on a federally funded program or entity. Last week, the Supreme Court unanimously reversed their convictions.
Writing for the Court in Kelly v. United States, Justice Elena Kagan hardly vindicated the erstwhile officials. “The evidence the jury heard no doubt shows wrongdoing—deception, corruption, abuse of power,” she explained. “But,” she went on, “the federal fraud statutes at issue do not criminalize all such conduct. Under settled precedent, the officials could violate those laws only if an object of their dishonesty was to obtain . . . money or property.” Although the incidental effects of the traffic-snarling plan were costly, imposing those costs was not a goal of the scheme.
Accordingly, while making clear that the underlying conduct was dangerous and wrong, the high Court invalidated the convictions for the crimes charged. That disposition raises the question of how political actors might respond. Unfortunately, there are reasons to doubt that the response will be adequate.
Prosecutions under state law are a possibility. The majority opinion in Kelly repeatedly pointed to the limits of existing federal statutes. State anti-corruption statutes may be stricter than their federal counterparts. Moreover, even state laws that are worded similarly to federal ones can be construed to apply more broadly, so long as the scope of state court interpretation is sufficiently clear in advance to give defendants fair notice.
For example, a New Jersey statute barring unauthorized use of public resources might cover the Bridgegate conduct. Unfortunately, however, it is too late for charges under it, even if it does apply, because the general statute of limitations for criminal charges in New Jersey is five years. (Certain corruption offenses can be charged within seven years, but the unauthorized-use prohibition is not among them.)
Going forward, one might hope that, where existing statutes are inadequate to the task, state legislatures would enact criminal laws clearly forbidding the likes of the Bridgegate scheme, but even if they do, there is no guarantee that such laws will be vigorously enforced. The risk of self-dealing by state and local prosecutors who are cozy with those accused or may themselves be accused of corruption is the raison d’être for those provisions of federal law that forbid corruption by state and local officials. Relying on state and local prosecutors to bring corruption charges against their cronies or themselves leaves the fox to guard the chicken coop.
Could Congress Broaden the Law?
Some of the rhetoric of the Kelly opinion suggests that the Supreme Court believes allowing federal prosecution for the Bridgegate conduct would be excessive. Without the requirement that money or property must be the object of a corrupt scheme, the Court warned, “even a practical joke could be a federal felony.”
Yet it is not up to the Court to decry over-federalization. The policy question of how much to criminalize is a matter for Congress. True, Congress may not regulate beyond the scope of enumerated powers, but Justice Kagan did not suggest that it did so in either of the statutes at issue in Kelly. The wire fraud statute exercises the power to regulate interstate commerce, while the fraud-on-a-federally-funded-entity statute exercises the spending power.
Hence, notwithstanding the Kelly Court’s hand-wringing, Congress could, if it so chose, broaden the scope of the existing statutes to cover future conduct along the lines of Bridgegate. Should it do so? It arguably already did so over three decades ago, when it enacted
language specifying that a person can be guilty of fraud by engaging in “a scheme or artifice to deprive another of the intangible right of honest services.”
That sure sounds a lot like what the “Bridgegate” defendants did, so why wasn’t that statutory language dispositive in Kelly? Because in a 2010 case reversing a high-profile corruption conviction arising out of the Enron scandal, the Supreme Court found that taken at face value, the “honest services” language might be so vague as to violate the constitutional requirement of fair notice. Employing the so-called canon of constitutional avoidance—under which courts read statutes to avoid raising the strong possibility that they are unconstitutional—the Court read the honest services provision (somewhat implausibly) as limited to kickbacks and bribes.
In Kelly, the Court stated that “not every corrupt act by state or local officials is a federal crime,” which is surely true. However, the narrowness of federal criminal law governing corruption is mostly a product of the Court’s own jurisprudence rather than straightforward application of the statutory text enacted by Congress.
In a well-functioning political system, the difficulty of obtaining criminal convictions of corrupt officials might not be a problem. If public officials engage in corruption, they can lose their jobs. And indeed, such a fate befell the Bridgegate defendants. Nonetheless, we have reason to doubt that the political system functions sufficiently well to deter corruption.
The impeachment of President Trump is an instructive cautionary tale. Every competent constitutional lawyer noted that when the Constitution allows for impeachment of the President and other officials upon “Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” it does not refer to statutory offenses. Given the different purposes that impeachment and criminal punishment serve, an act that violates the criminal code is neither a necessary nor a sufficient condition for impeachment and removal. Nonetheless, playing on an understandable tendency of the public to conflate the two concepts, the President and his apologists repeatedly claimed that he could not be impeached or removed because he had not engaged in criminal conduct.
The factual predicate for that argument is highly dubious. As Professor Ilya Somin noted in an excellent column discussing Kelly’s implications, Trump’s efforts to coerce Ukrainian President Volodymyr Zelensky to announce investigations into Joe and Hunter Biden was a crime in violation of federal election law. And even if Trump’s conduct had not violated any statute, it would still have been a basis for impeachment. Nonetheless, the disingenuous not-a-crime argument provided all but one of the Republican Senators with enough of a fig-leaf of a public justification for their predetermined votes to acquit Trump.
In an 1897 speech, Oliver Wendell Holmes, Jr. famously stated that the law can best be understood from the perspective of “a bad man, who cares only for the material consequences” of his actions. In order to rein in the bad people around us, the law substitutes rewards and punishments for the pangs of conscience that good people feel.
The bad-man approach has a downside, however. Psychologists have observed the phenomenon of “crowding out,” in which rewards and punishments displace intrinsic motivation. Some people who would have done the right thing even without a formal incentive come to see their conduct strictly in terms of consequences. Absent legal sanctions, they would pay their taxes out of a sense of obligation to the community, but given such sanctions, they come to regard their own tax paying as aiming only at avoiding an audit.
Crowding out is an inevitable and all-things-considered justified cost of a legal system. Because too many people lack a sufficiently developed conscience to block their own anti-social impulses, we need the law to control the bad apples, even though it undercuts the pro-social impulses of some fraction of the good apples.
That is at the level of individuals. Crowding out also operates at a society-wide level. Based on observations in the early 1830s, Alexis de Tocqueville characterized the United States as a highly legalistic culture. “Scarcely any political question arises in the United States,” he wrote in Democracy in America, “that is not resolved, sooner or later, into a judicial question.” Tocqueville exaggerated, but his basic point was and remains sound: Americans tend to conflate what is legal with what is just.
That conflation was on full display last week. Justice Kagan’s opinion for the Court unequivocally acknowledged that the jury heard evidence of “wrongdoing—deception, corruption, abuse of power.” Yet President Trump characterized the Kelly decision as “a complete and total exoneration” of his on-again-off-again political ally Chris Christie, who himself pronounced that “justice has finally been done.”
Trump and Christie are wrong. If one finds the Court’s statutory construction persuasive, then one can say, at most, that the law was followed in the Kelly case. However, so long as corrupt bullies exercise political power, justice remains a distant ideal.