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.