While I’m still finding it a bit difficult to think or write about anything other than the coronavirus pandemic, there have nevertheless been some other newsworthy corruption-related developments in recent weeks. One of them—perhaps, I admit, or more interest to our U.S. readers than to others—was the U.S. Supreme Court’s decision last week in United States v. Kelly, which overturned the federal criminal convictions of two close associates of former New Jersey Governor Chris Christie for their role in a scandal known as “Bridgegate.” Back in 2013, when then-Governor Christie (a Republican) was seeking re-election, he sought to bolster his candidacy by securing the endorsements of several Democratic mayors of New Jersey cities. When the mayor of the city of Fort Lee declined to endorse Governor Christie, several of Christie’s allies who worked for the Port Authority of New York and New Jersey (the entity that regulates transportation in the busy New York-New Jersey region) retaliated against the mayor by deliberately closing lanes on the busy George Washington Bridge, creating major traffic jams in Fort Lee for several days. They justified the closures with a “traffic study,” but this, the evidence adduced at trial clearly showed, was an utterly dishonest pretext for an act of political retribution. Nobody seriously contests that what these Port Authority officials (who were fired after the scandal was exposed) did was a corrupt abuse of power. But was it also a federal crime? U.S. federal prosecutors argued that it was, and convinced a jury to convict, but the Supreme Court unanimously disagreed and reversed the conviction.

There’s already been quite a bit of commentary on the Kelly decision. A number of critics argue that Kelly, together with several previous Supreme Court decisions, “opens the door to a distressing form of government corruption,” and has made federal prosecution of corruption “nearly impossible.” Other commentators asserted that not only did the Court reach the correct legal conclusion, but in fact the law properly does not criminalize the conduct of the officials in this case—because doing so, according to these commentators, would have sweeping and undesirable consequences, criminalizing a wide swath of garden-variety political conduct (such as using government power to benefit supporters and/or lying about the true motivations behind regulatory actions).

I should confess right now that I haven’t followed the legal arguments in this case very closely, nor am I an expert in the specific statutes at issue. With that important caveat, my own assessment is somewhere in the middle:

• I think that, given the wording of the relevant statutes and prior Supreme Court precedent, the Court’s decision in Kelly is probably correct, and certainly defensible.
• I don’t think the decision breaks that much new ground or makes it substantially harder for federal prosecutors to go after other forms of corruption, such as “garden variety” bribery or embezzlement.
• That said, the decision does highlight an important gap in the coverage of existing federal anticorruption laws, and I tend to think that the sort of behavior at issue in this case—behavior that, in the Supreme Court’s words, amounted to “corruption [and] abuse of power”—can and should be criminalized (under federal as well as state law). Such criminalization, if accomplished through a sufficiently well-tailored statute, would not criminalize “ordinary politics,” at least not the sort of ordinary politics we ought to tolerate.

Let me elaborate a bit on each of these points:

First, with respect to the legal aspects of the decision, the key thing to understand, as other commentaries have also stressed, has to do with the wording of the statutes under which the federal prosecutors brought charges in this case. There is not a general federal statute prohibiting “corruption” or “abuse of power” by state and local officials. Rather, federal prosecutors in this case charged the defendants with violating two statutes—the general mail and wire fraud statute (18 U.S.C. §1343) , and a special statute (18 U.S.C. §666) criminalizing fraud in government programs that receive federal funds. The problem is that the relevant sections of these statutes, as interpreted in prior Supreme Court precedents, criminalize the use of fraud to obtain property. These statutes, in other words, seem to have been drafted to prevent government officials from (1) using their authority to extort money or other property from citizens (§1343), and (2) embezzling or converting to their own use property that belongs to a government agency. Those statutes are at best an awkward fit with the misconduct at issue in Bridgegate. The public officials in that case did not appropriate any money or property for themselves or others; rather, they abused their power to punish a political opponent.

The government tried to argue that the defendants had, in fact, fraudulently obtained the Port Authority’s property, in two ways: First, traffic lanes themselves were the property of the Port Authority, and in ordering those lanes closed the defendants converted that property to their own use (for political purposes). The Supreme Court rejected that argument on the grounds that the closure of the lanes was an exercise of the Port Authority’s regulatory power, not a conversion of its property. The government also argued that the lane closure required the use of Port Authority employees’ (paid) time. The Supreme Court accepted the idea that misuse of an agency employees’ time might count as misuse of an agency’s property, but only when, for example, the diversion of the employees’ time is the object of the fraudulent scheme (as when an agency official, for example, orders her subordinates to do her shopping or work on her political campaign). In the Bridgegate case, the diversion of employee time was at most incidental to the scheme, not its object, and so one could not say that the defendants committed a fraud for obtaining this employee time.

That legal analysis, given the wording of the statutes in question, seems plausible, and probably correct. There is one wrinkle, however. Section 1343 prohibits any “scheme or artifice to defraud,” and while back in 1987 the Supreme Court held that this language only covered fraudulent schemes to obtain money or property (thus rejecting the “honest services fraud” theory that federal prosecutors had been using to prosecute state-level bribery schemes), Congress responded by enacting an amendment, codified at §1346, that explicitly defined “scheme or artifice to defraud” as including “a scheme or artifice to deprive another of the intangible right to honest services.” One might think that this language would clearly cover the conduct of the Bridgegate defendants, who used a fraudulent scheme to defraud the citizens of New Jersey of the intangible right to the defendants’ honest services. The problem, though, is that in yet another prior Supreme Court case, from 2010, the Court held that the “honest services fraud” theory could only apply to cases involving bribes or kickbacks. (The Court reasoned that otherwise the criminal prohibition on a public official fraudulently depriving the citizens of their intangible right to the official’s honest services would be overly and unconstitutionally vague.) Given that precedent, and the absence of any evidence of bribery in the Bridgegate case, the Court concluded that it could only uphold the convictions if the defendants had fraudulently obtained property; because they had not done so, the convictions had to be reversed.

This is certainly a defeat, and a frustrating one, for both federal prosecutors and anticorruption advocates. That said, one should be careful not to overstate the impact of the Court’s holding. Nothing in Kelly limits the ability of federal prosecutors to go after officials who take or solicit bribes, or officials who embezzle public funds. My understanding (though I admit I haven’t looked at the hard data) are that those sorts of cases, not cases like Bridgegate, are by far more typical. I acknowledge, of course, that this may be due in part to the Court’s 2010 holding that honest services fraud only applies to cases involving bribery, but my point here is that it’s unlikely that Kelly will add much in the way of significant new limits on federal corruption prosecutions.

But of course the Kelly holding does mean (or confirm) that the federal criminal laws do not cover some cases that unquestionably involve egregious abuses of power—cases like Bridgegate itself, where public officials abuse their power to punish political opponents, and possibly also cases where such power is misused for vindictive personal reasons. This is not something we should tolerate, let alone applaud, even if we think that the Supreme Court’s Kelly decision was a correct interpretation of the law as currently written. This is why I have so little patience with commentaries that are celebrating the Supreme Court’s Kelly decision as an acknowledgement of the reality that “trading favors and punishing enemies[] is the currency of politics” or that minimize the Kelly defendants’ wrongdoing as little more than “routine” “bare-knuckle … politics” rather than corruption. One might agree that the current federal criminal laws do not prohibit this behavior. One might also agree that the legal theories the government advanced in the Kelly case would, if accepted without qualification, sweep far too broadly. That most assuredly does not mean, however, that the abuses of power at issue in cases like Bridgegate should not be criminal. They should be, and this gap in U.S. anticorruption law ought to be plugged.

As Jacques Singer-Emery in a prescient commentary on the Kelly case a few months ago, there are two ways to respond to the gap in U.S. anticorruption laws in the aftermath of the Kelly holding:

• One possibility would be to rely on state law, and indeed some commentators have (on this blog and elsewhere) have argued that states should step up and play a greater role in enforcing their anticorruption laws against state and local officials, rather than relying on federal prosecutions. But reliance on state law is problematic, particularly in settings were state prosecutors, and perhaps state judges as well, are part of the same political machine as the corrupt officials. There’s a reason that, historically, it has been federal prosecutors who have played a central role in cleaning up state and local corruption.
• Another possibility, therefore (though certainly not mutually exclusive with a greater state role) would be to amend federal laws to prohibit the sort of retaliation at issue in cases like Kelly, but to draw the prohibition sufficiently narrowly that the federal criminal prohibition would not be overly broad or vague, and would not criminalize all forms of political dishonesty. Contrary to some of the commentary, it does not seem that this should be so difficult to do. The existing federal fraud and extortion statutes could, for example, be broadened to cover any public official who (in cases where there is federal jurisdiction) “acting under color of official right, corruptly undertakes or threatens to undertake any official act with the primary purpose of inflicting harm on any person, for personal or political reasons unrelated to a legitimate public purpose.” Such an amendment would not allow federal prosecutors to charge any act of political dishonesty or political favoritism as a federal crime, but it would enable prosecutors to go after egregious conduct like the abuses at issue in Bridgegate. (That phrasing has some open-ended terms, like “corruptly” and “legitimate public purpose,” but these or similar terms are frequently used in the law. And the proposed phrasing is drawn narrowly such that ambiguous or mixed-motive cases would not give rise to criminal liability.) This is not currently the law. But it should be.