As Matthew explained yesterday, last Thursday the Supreme Court ruled that a political dirty trick, generating a traffic jam for a town’s residents after their mayor refused to support the reelection of the state’s governor, while an abuse of power, does not constitute fraud under federal criminal law. The Court’s unanimous decision in “Bridgegate,” so named because the traffic jam was created by closing two of the three lanes residents use to drive across the George Washington Bridge, was authored by former Harvard Law School Dean and Obama Solicitor General Justice Elena Kagan. That the decision was unanimous and written by a member of the Court’s liberal wing are two of several clues in the Court’s opinion showing it is no part of a Trump-inspired plot to legalize public corruption. Washington Post readers, however, could be forgiven for thinking otherwise. For Michigan Law School Professor Leah Litman wrote in the paper’s March 10 edition that the Court’s decision is the latest in “a string of failed corruption cases” that has made it “almost impossible to put a crooked politician in jail.”
This is plain nonsense.
Ask now former Republican Congressmen Robin Hayes, Chris Collins, and Duncan D. Hunter. All are now ex-Congressmen thanks to corruption charges brought against them since Trump took office. Or defendants in the 421 new official corruption cases the Department of Justice opened in 2019 (paywall here). Or those in the 30 cases it initiated just this past February.
Contrary to what the professor writes, the case does not show the Court has accepted “the inevitability of corruption in politics.” It is rather the latest round in a 30 plus year back-and-forth among Supreme Court justices, federal prosecutors, Congress, and academics on a critical issue of law enforcement and American democracy: the power of federal prosecutors to set standards of integrity and good government for state and local officials.
The tussle begins with McNally, a 1987 decision on whether the federal law making it a crime to use the mail to further a scheme to obtain property by fraudulent means could be stretched to prosecute garden-variety political patronage. The chair of the Kentucky state Democratic Party had arranged for the insurance agent handling Kentucky’s workman’s compensation business to share the commissions with other, politically connected agents. Prosecutors asserted this was fraud, for Kentuckians were deprived of property, their “intangible right” to have the state’s affairs conducted honestly. And because the commissions were mailed, it was mail fraud. The Court ruled 7-2 that this stretched the meaning of property beyond recognition. It invited Congress to amend the law if it wanted to make the denial of the right to honest government a federal crime, an invitation the Congress accepted. The following year it approved legislation making it a crime to “deprive another of the intangible right of honest services.”
Creative federal prosecutors took another crack at expanding the mail fraud statute in 1996, charging defendants had violated it by concealing from the Louisiana agency that regulates gambling the true owners of a company seeking a gaming license. The prosecutors’ theory was that the mails had been used to defraud Louisiana of property, the gaming licenses it issues. In Cleveland v. United States, defendants challenged their convictions, and in a unanimous opinion penned by Justice Ginsburg, a justice not known to have a soft spot for public corruption, the Court threw out the convictions. To rule that the definition of property encompassed state-issued licenses would, she explained, result in “a sweeping expansion of federal criminal jurisdiction,” one the Court would not embrace absent specific statutory direction from Congress. (It has yet to enact such a law.)
In 2010 in Skilling, a case arising from the prosecution of private sector fraud, the Court was asked whether a defendant’s undisclosed conflict of interest deprived his employer of his honest services and was therefore criminal. In a unanimous opinion again by Justice Ginsburg, it held it did not. Conflict of interest, as readers of this blog know, is a nebulous (“amorphous” says Justice Ginsburg) term. Due Process demands that the elements of a crime be stated with sufficient clarity that citizens know what is and is not illegal. Criminalizing conflict of interest and indeed other conduct a prosecutor might think deprives citizens of an official’s “honest services” could not pass Constitutional muster. It gave prosecutors too much leeway in defining when politicians had committed a crime and when they hadn’t.
At the same time, there was nothing vague or unclear about the core concern that prompted Congress to pass the honest services law — the bribery of state and local officials. Bribery is clearly defined, universally condemned conduct. Rather than throwing the statute out entirely, the Skilling Court preserved this core concern, construing the statute cover one offense: the failure to provide citizens honest services by soliciting or accepting a bribe. That is where the law stands today.
Professor Litman would have readers believe that federal prosecutors are the only ones protecting citizens from corrupt, venal state and local leaders. That is of course not true. All states, and many cities and counties, have their own prosecutors. All but three states have state-level ethics commissions; many cities (examples: New York, Chicago, Laurel, Maryland) have one as well, and if all these agencies can’t hold corruption in check, there is always the ballot box.
Contrary to the professor’s claim, McNally, Cleveland, Skilling, and Bridgegate are not about making it “almost impossible to put a crooked politician in jail.” They are instead about striking a balance between state and federal enforcement of ethics and anticorruption laws and more fundamentally about when an unelected prosecutor should be able to question the electorate’s choice. Professor Litman may not like the balance the Court has struck, the Congress has acquiesced in, and a prominent member of the legal academy has applauded (here). But given her credentials – and the platform one of the nation’s leading newspapers gave her to speak to the public – she owed citizens a reasoned explanation for why she found the Bridgegate decision so objectionable.
To be sure, in the age of Trump it understandable why Professor Litman and others were so quick to denounce Bridgegate. The instinct is to denounce immediately and unequivocally anything that in any way suggests pulling back from the fight to contain corruption. But the exaggerations and overheated rhetoric that runs through her article only contributes to the already dangerously high level of cynicism about American institutions that Trump and associates’ daily flaunting of the law and ethical norms has produced. Might the professor and other authorities on American corruption law temper their rhetoric? Whatever their qualms about a particular court case or policy decision, couldn’t they present them in a way that reassures Americans that, no matter Trump’s best efforts, the country is not going to hell in a handbasket?