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?
How about this example of overheated rhetoric?
You make some valid points, but I think you’re being a bit unfair to Professor Litman.
I agree that the statement that “It has, in short, become almost impossible to put a crooked politician in prison” was inaccurate hyperbole. But she is not wrong that prosecuting the sort of corruption at issue in Bridgegate is extremely difficult under federal law (as I emphasized in my post yesterday), and rather unlikely under state law (or so it seems from the track record).
Oh, and on the subject of states, while you’re right that many states have anticorruption commissions, many of these lack significant investigative and prosecutorial powers, and not all of them are meaningfully independent. And the reference to holding corrupt politicians accountable at the ballot box is not really a terribly convincing response to the concerns Professor Litman raises here. Surely you don’t mean to suggest that we don’t need criminal anticorruption laws for elected politicians? And what of the fact that many corrupt officials, including the Bridgegate defendants, are not themselves elected? You may be right that the combination of state law and electoral accountability means we don’t need federal criminal law to cover these forms of corruption. Maybe you’re right, but I’m not convinced–and it’s certainly not self-evidently true. Indeed, much of the history of corruption control in the US involves aggressive federal enforcement against corrupt state and local political machines.
Also, while we can fault Professor Litman for vastly overstating her case by claiming that it’s “virtually impossible” to put corrupt officials in jail these days, I’m not sure the evidence you cite (either the individual examples or the more general statistics from DOJ) would be sufficient to debunk the more measured claim that federal prosecutions of official corruption are now harder and less frequent than they were eight years ago. A couple reasons for this. First, the raw numbers from DOJ lump together a lot of different kinds of cases as “public integrity” cases (including things like postal workers stealing mail). Second, Professor Litman cites data (which I haven’t independently tried to verify) that the DOJ’s public corruption prosecutions are in fact down by about a third, which if true would be a substantial decrease even if you’re right that there are still several hundred cases a year.
Again, I don’t dispute that you’re right to criticize and correct Professor Litman’s exaggerations, but her larger point is not as self-evidently absurd as you seem to imply.
Overheated rhetoric does not help us combat serious corruption problems. Too often, we are able to magnify flaws in the actions of our political opposites. If professors are able to help folks place things in perspective, we are doing our jobs.
Glad you didn’t think my critique of Professor Litman was overstated. For its overriding point is the need to eschew rhetorical excess.
To know whether the Court’s decisions that allow federal prosecutors to pursue state and local officials for bribery but nothing more are correct, it would first be nice (critical?) to know how effective state prosecutors, ethics commissions, and other state and local enforcement agencies have been in preventing corruption. I can point to some promising developments (New Jersey’s AG created a dedicated unit that has had some recent successes; Washington, D.C. is creating one, and California has had a very strong ethics commission for years) but without data we don’t know. Perhaps an academic reading this blog, someone with a background in both law and quantitative social science, might pursue the issue?
I did not mean to suggest there is no need for criminal anticorruption laws for elected politicians. Or for appointed officials or career officials. But they need not be federal.
There is also the question of how far the criminal law should extend beyond bribery. Should defendants in McNally have faced criminal charges for garden-variety patronage? Is a prison sentence an appropriate sanction for the Bridgegate defendants? Former New Jersey Assemblyman Mike Carroll argued that had the case been handled as a charge of official misconduct at the state level, it would have settled quickly and cheaply years ago with defendants forced to leave office in disgrace. Doesn’t that seem to be a more fitting sanction?
The deeper question is whether criminal prosecution is the best way to deal with corrupt politicians. In ruminating on the effectiveness of criminal sanctions for political corruption a, Professor Albert Alschuler argues it may be counterproductive:
“Professor Daniel Patrick Moynihan commented, ‘[P]olitics, business, and war have ever been the affairs of adventurers and risk takers,’ and Moynihan’s observation may be especially true today. The adventurers still attracted to the game may be more likely than today’s Adlai Stevensons to cut corners. Criminal prosecutions probably have contributed to rather than ameliorated the public’s sense that most politicians are ‘crooked.’” 84 Fordham Law Review 463, 490 (2015).
I don’t disagree that historically aggressive federal enforcement of the antibribery laws have been an important check on elected politicians and their political machines. Operation Greylord is one of many examples. But note I said of the antibribery laws. Not the laws barring political dirty tricks (Bridgegate) or political patronage (McNally) or conflict of interest (Skilling). I will give it to you that Cleveland (non-disclosure of beneficial ownership) is a closer call.
Even if Professor Litman is correct that federal prosecutions for corruption are down by a third, that means little by itself. Perhaps the slack is being taken up by state prosecutors. Indeed, both the New Jersey and D.C. units are headed by former federal prosecutors who specialized in corruption when in federal service. Perhaps deterrence is working. And, while I know some readers of this blog might find this a fantastic conjecture, it just could be that there is less corruption at the state and local level today. Again, an empirical question that begs answering.
I think we largely agree on many of the issues here. We can agree that Professor Litman was greatly overstating her case when she suggested that it was now virtually impossible in the U.S. to put a crooked politician in jail, and I suspect that if pressed on this she’d likely concede that this was, at the very least, a rhetorical excess. We also seem to agree that (1) there ought to be some role for criminal prosecutions, including federal prosecutions, in rooting out state and local corruption; (2) federal criminal prosecutions are not the only tool available, and are often not the best tool to use; and (3) the crude statistics from the DOJ and elsewhere regarding total number of cases/convictions can’t really tell us much one way or the other.
Some points where we might (and I emphasize _might_, as distinct from “do”) disagree:
(1) You seem to have a lot more confidence that I do that state enforcement is an adequate substitute for federal enforcement. I agree that there’s more state enforcement that we sometimes acknowledge, and that there are some encouraging examples of some state agencies getting more aggressive in going after these cases. (For a nice analysis calling for more of a state role in anticorruption enforcement, check out Jason Kohn’s post from 2019: https://globalanticorruptionblog.com/2019/01/14/the-case-for-state-level-anticorruption-prosecutions-in-the-u-s/.) But it seems that you are much more sanguine about this alternative than I am. I readily concede that I don’t have hard data I can point to (nor do you), but my sense from a combination of history and contemporary anecdote is that the federal prosecutors just have much more capacity and willingness to go after complex corruption cases (especially those implicating those with strong connections to the state political establishment) than do most state prosecutors.
(2) While it may well be that under current federal law what the Bridgegate defendants did was not a federal crime, I don’t share your apparent skepticism that what they did _should_ be a federal crime. This was not a case of patronage or conflict of interest or even plausibly mixed motives. This was a blatant and deliberate misappropriation of the power of the government to punish a political adversary for failure to boost a sitting politician’s re-election prospects, and the form of retaliation endangered public safety. I really bristle when commentators use euphemisms like “bare-knuckle politics” (or even “political dirty tricks”) to characterize what was an unambigously corrupt abuse of power and betrayal of the public trust. Whether the Bridgegate defendants ought to have gone to prison is a slightly trickier question for me only because I have concerns about the overuse of incarceration generally, and so I’ll demur on discussions of the appropriate sentence. But on the question whether conduct of the sort at issue in Bridgegate ought to be proscribed by the (federal) criminal law, I say without hesitation that the answer should be yes (even if the actual answer under the statutes as currently drafted and interpreted is probably no). And I confess I’m puzzled as to why you disagree.
I agree that we agree that 1) the federal and state governments should both be responsible for prosecuting state and local corruption; 2) a federal criminal prosecution is not always the preferred way to police state and local corruption; and 3) the data available on corruption cases and convictions is too poor to confidently say anything more specific about numbers one and two. We differ in the importance we place on the availability of the option of a federal prosecution. but as you write, that turns on differences of judgments made in the absence of hard data. (By the way, Professors Cordis and Milyo show in a 2016 paper just how bad the most widely cited U.S. corruption prosecution data, that supplied by the Department of Justice’s Public Integrity Division, is. http://web.missouri.edu/~milyoj/files/MPIN_A_1111748%20(002).pdf)
I did not mean to downplay the seriousness of defendants’ actions in Bridgegate, and if there were a chance that they would have escaped serious sanction but for a federal prosecution, then federal prosecution should be an option. What bothers me is they were charged with a crime that carries a maximum sentence of 20 years in prison and a $250,000 fine. Although neither received anything close to the max, 18 months for one and 24 for the other, that they faced the possibility of a 20-year sentence seems out of proportion to the seriousness of the crime. I am amazed they risked trial rather than accepting a plea bargain.
Bridgegate offers many lessons — not only for how the United States should allocate responsibility for policing corruption by state and local officials between the federal and state governments but how any federal system should divide the responsibility between its central government and subnational units. In thinking about that question, it also forces one to consider one of the knottiest problems any democracy faces: when an unelected prosecutor should be able to question the electorate’s choice.
I would say that is enough grist for a second post. Agree?
Well we are drifting toward the big questions. Unelected prosecutors second guessing the electorate does sound dire. But if we frame it as fidelity to the rule of law, including by elected officials, it sounds more traditional. We might be having a Marbury moment here?
True, but how do we ensure fidelity to the rule of law? I am afraid the chance to bring a high-profile corruption too often brings into play career factors that blind some to the rule of law issues. Rudy Giuliani’s decision while U.S. Attorney to personally prosecute the Queens borough chief after wresting the case away from local prosecutors could serve as exhibit one.
You have, as usual, Richard, hit the nail on the proverbial head. Supervision of prosecutorial discretion, particularly in corruption, discrimination or sexual assault cases which carry heavy social stigmas as well as criminal penalties, is at the heart of the issue. In corruption cases we currently rely on whistleblowers and investigative journalism to call attention to the problems. Like any 911 type response system, this has some real drawbacks. In addition, extreme partisanship has undermined the credibility of corruption accusations both in the US and many other nations. Maybe Matt can start a thread where we can trade some ideas about how to reduce partisanship and increase principled policies into prosecutorial discretion in corruption cases?