This past January, the U.S. Supreme Court heard oral arguments in a case that has the potential to make it significantly harder for federal prosecutors to enforce public integrity laws. That case, Kelly v. United States, centers on whether two associates of former New Jersey governor Chris Christie, Bridgette Kelly and Bill Baroni, committed criminal fraud within the meaning of a federal statute codified at 18 U.S.C. § 666 (sometimes referred to simply as §666). Section 666 prohibits government agents from “knowingly or intentionally misapply[ing] property that is valued at $5,000 or more” and owned by an agency that receives over $10,000 in federal funding during any one-year period. Federal prosecutors argued that Kelly and Baroni violated §666 when they lied in connection with using public funds and property to carry out political retaliation against a New Jersey mayor who had refused to endorse Governor Christie. The alleged retaliation involved creating traffic jams by closing lanes on a major bridge (hence the moniker “Bridgegate”) using the trumped-up excuse that the lane closure was for a “traffic study.”
Kelly and Baroni were convicted at trial, but they are arguing on appeal that the prosecutors’ interpretation of §666 embraces an “astoundingly expansive theory of criminal fraud,” under which any public official could be indicted “on nothing more than the (ubiquitous) allegation that she lied in claiming to act in the public interest.” If Kelly and Baroni convince the Supreme Court to interpret §666 more narrowly, this could be the most significant change in U.S. public corruption law since the Court’s decision in McDonnell v. United States.
To understand the significance of this case, it’s important to recognize that §666 is a powerful weapon in federal prosecutors’ anticorruption arsenal. Prosecutors have used §666 to go after a wide range of activity, including a solicitor who bribed a Minneapolis councilman, the president of a business who defrauded an organization that received benefits under a federal assistance program and paid kickbacks to one of the victim organization’s agents, and a sheriff and his deputy who accepted bribes in exchange for allowing special access to a prisoner. Indeed, §666 is considered to be such an effective anticorruption tool that only six years after it was passed in 1984, some US anticorruption commentators dubbed it “the beast.”
But it is exactly this type of breadth that is under attack in the Kelly case. The government’s indictment asserted that when Kelly and Baroni conspired to create a fake traffic study that would justify shutting down the lanes, with the actual purpose of punishing a political enemy, they were committing fraud under §666. The government argued that because the only way Kelly and Baroni could obtain the legal authority to close those lanes was to lie and create the false traffic study, the two of them had fraudulently converted to their own use property (the bridge lanes) that belong to the New Jersey Port Authority, an entity that receives federal funding.
Kelly and Baroni argued that this interpretation of §666 stretched the statute beyond its already broad limits. The questions at the Supreme Court’s oral argument suggest that several Justices, from across the political spectrum, were inclined to agree with the petitioners. Chief Justice Roberts, Justice Breyer, and Justice Alito all observed that lying about the reasons for official conduct, while morally questionable, is commonplace, and does not imply a lack of authority to take otherwise lawful actions. Justice Breyer also observed that while not allowing prosecutors to use §666 in a case like this presented “quite a problem,” vacating Kelly and Baroni’s convictions might be the lesser of the two evils, given concerns about making it a federal crime for public officials to lie about why they pursue a specific policy. Justice Kagan also noted that criminal fraud traditionally requires that the defendants have the goal of obtaining property for themselves, and neither defendant in this case had done so.
If the Supreme Court vacates Kelly’s and Baroni’s convictions, it will remove a critical catch-all anticorruption mechanism that federal prosecutors regularly use to investigate and prevent abuse of power by state and local officials. It is of course possible that such a ruling could be defended as legally correct, perhaps even legally required under the law as written. Nonetheless, such a ruling would have unfortunate practical consequences. It would send a message that government officials can misuse public resources to punish political adversaries and then dedicate additional resources to covering up their actions. Such a ruling also risks chilling other federal investigations and prosecutions into similar activity, much as the McDonnell ruling may have discouraged prosecutors from investigating and prosecuting potentially corrupt behavior that was not unequivocally criminal (though as I have argued elsewhere, McDonnell’s adverse effect on corruption prosecutions appears to have been overstated).
If the Court does rule that §666 cannot be read to criminalize the conduct at issue in Kelly, what could be done to give prosecutors the tools they need to deter and punish this sort of corrupt misuse of public resources for political purposes? Two complementary options seem viable:
- First, the U.S. Congress could amend §666 and/or pass anticorruption statutes that more clearly criminalize egregious abuses of power, but that also impose well-defined limits on prosecutors. This will make these statutes less vulnerable to the sorts of challenges coming from cases like Kelly and McDonnell. Imposing such limits might prevent prosecutors from pursuing certain kinds of investigations, but it would provide the Court and the public with clearer laws that further legitimize anticorruption probes.
- Second, if it becomes harder for the federal government to prosecute state-level corruption and abuse of power, the states can and should step up, as Jason Kohn hast argued in a previous post on this blog. Citizens can pressure state legislatures to pass more stringent state anticorruption laws and elect State Attorneys General willing to enforce those laws aggressively.
These two approaches are not mutually exclusive: while Congress works with the DOJ to draft and pass anticorruption statutes that the Supreme Court will uphold, the states can develop their own statutory solutions and empower state Attorneys General to better investigate and prosecute malfeasance. That said, both approaches will take time and will require significant public support. The DOJ might respond to an adverse decision in Kelly by pushing Congress to act, but ultimately it is up to voters, activists, and civil society to pressure legislatures to patch up the gradually crumbling edifice of federal U.S. anticorruption law.
GAB | The Global Anticorruption Blog 
Interesting post. On the first solution (or, I suppose, both), how would you design the limitations on prosecutors? Certain categories of misconduct? Or maybe a heightened mens rea requirement?
Thank you Jacques for outlining the details of this very interesting case. I agree with you that it would be unfortunate to limit the tools for fighting corruption in the United States but also see Justice Kagan’s point that criminal fraud traditionally involves defendants acquiring physical property for themselves, which was not the reality in this case. I believe that Kelly and Baroni’s behavior is unsavory but wonder what other charges might have been more applicable to address their problematic actions. I like your suggestions for what to do if the ruling isn’t upheld but could you talk more about what you think would fall into the category of “egregious breaches of power?” Additionally, I am not sure if a more concrete definition for these breaches would be good for anti-corruption prosecutors because if a potential crime is not explicitly on “the list” it might actually be harder to get convictions. Lastly, you mention that it is ultimately up to citizens to usher in change. Do you think the American public has been more attuned to corruption in their country after watching the high profile presidential impeachment trial and do you think its conclusion invigorated or discouraged citizens from pushing for anti-corruption reforms?
Thank you for a fascinating post, Jacques, this really explains a lot! It almost seems as though the justices have fairly little choice but to vacate the sentences, given the potential consequences of reading a violation here. Do you think there is a way for them to uphold these convictions on narrower grounds or is this inevitably a problem that must be left to the legislature? And to echo Duffy, what kinds of limitations would you suggest be implemented to check politicians’ ability to engage in this sort of behavior in the future?
Thank you for your post, Jacques – it’s very interesting. I, along with many others, am struck by the Court’s hostility to anti-corruption statutes in recent years, exemplified by their decisions in Skilling (removing self-dealing from the ambit of honest services fraud) and McDonnell. If the Justices vacate the convictions of Baroni and Kelly and trim back 666, I wonder how they would respond to broad state statutes targeting the same conduct. The Supreme Court would obviously have the opportunity to review fewer challenges to state anti-corruption laws, but I’d imagine defendants convicted under those statutes would be eager to bring them to this Court.
Of course, this concern would be mitigated somewhat if the state statutes were already on the books, but I can see state-convicted defendants using constitutional vagueness arguments or other “hooks” to bring new statutes in front of the Court. Essentially, I wonder how the Court would respond to state statutes broadly prohibiting the kinds of conduct at the heart of Skilling, McDonnell, and now potentially Kelly.
Jacques, this is really interesting. Echoing some of the other comments, I am wondering what the parameters of § 666 (or new anti-corruption legislation at the state and/or federal level) should look like in order to encompass behavior like that in Kelly without, as Justice Breyer put it, making it a crime for public officials to lie about the reasons behind a policy. Do you think the conversion of property for personal benefit/use (however temporary that conversion may be) could be a useful line, notwithstanding Justice Kagan’s note about traditional criminal fraud? If that were the line, I could imagine the argument shifting to what constitutes misuse. In Kelly, the misuse was essentially that the traffic study was fake and not for the public benefit. But if Kelly and Baroni could have pointed to any plausible legitimate reason for a traffic study with lane closures, they’d probably get away with it under this interpretation. And this could place the Supreme Court in the very unwelcome position of deciding what constitutes a legitimate policy reason, which it would likely want to dodge.
From my perspective, the statute in question does not criminalize specifically “fraud”. It considers as criminal offenses many conducts, one of which is just “misapplying public property”. For this reason, it seems incorrect to require obtention or transference of property to characterize crime in the situation. Mere misuse – which apparently happened – appears to be enough.
Anyway, if the ruling of the Supreme Court is in favor of defendants, the first proposed solution, relating to Congress action to amend the respective statute, is improbable. Politicians rarely move to enhance anti-corruption laws, especially when there is a chance of application of this legislation against themselves or their political allies in the future. The second solution seems to be more feasible. The problem is that apparently there is not a culture of anti-corruption prosecutions at the state level in the United States.
Thank you for this interesting post, Jacques! It seems like the comments above get at the heart of the issue. Does it seem like the Court is siding with the petitioners based on statutory interpretation concerns (i.e. they want to see a statute that explicitly outlaws this behavior and feel uncomfortable reading the statute this broadly), or do you think there are Justices on the court who do not believe the actions of Kelly and Baroni constitute corruption?
I was also struck by Justice Breyer, Alito, and Roberts’s comments that it should not be a federal crime for public officials to lie about the reasons why they implement a certain policy. While I agree this behavior is commonplace and would probably be hard to police (maybe the Court does not want to get in the business of deciding when a public official is lying), I am having a hard time imagining a scenario when we would want this behavior to be acceptable. This seems like an abuse of public trust that should qualify as corruption. Am I missing something?