The Supreme Court continues to bear the blame for two political operatives getting off scot free for an admitted blatant abuse of power: creating nightmarish traffic jams for residents of a small New Jersey town because its mayor had not endorsed their boss’ reelection as governor. Though the record showed the stunt endangered the lives of some and inconvenienced thousands and their lawyer admitted it was an abuse their power as state officials to cause the jams, the Court acquitted them on all charges. Its decision in the Bridgegate case, so named because the traffic jams were created by blocking two lanes of the bridge the residents used to commute to New York City, is indeed the immediate reason defendants escaped sanction.
But that ruling was the inevitable consequence of earlier decisions by the other branches of government. For decades Congress has ignored the Court’s warning that the hodgepodge of federal laws used to prosecute state and local officials for corruption is Constitutionally infirm. And for decades, and despite some spectacular earlier reversals by the Court, the Executive branch has continued to rely on these statutes to prosecute state and local corruption.
Those genuinely interested in fighting corruption need to stop denouncing the Court and focus their energies instead on these two branches of government. Below is what they should demand of the Executive. Part II of this post will explain what they should demand of Congress.
Anticorruption advocates should insist that the Executive branch, through the Department of Justice, immediately announce that it will obey the Bridgegate decision and the decisions on which it rests. The Department should state that, until Congress enacts new legislation, the only corruption cases it will pursue against state and local officials are those involving bribery, the only corruption offense the Court has sanctioned under current federal law.
The Bridgegate Court reaffirmed what it has made plain in the decision’s progenitors: the Due Process Clause does not permit prosecutors to use broadly drawn statutes outlawing mail and wire fraud and federal program fraud to ferret out corruption in state and local governments. It requires the criminal law “clearly define the conduct it proscribes.” Bridgegate defendants may well have known what they were planning to do was wrong, but it seems quite unlikely (“strains credulity” in brief writer lingo) that they would have any idea they would be running afoul of a statute making it a crime punishable by up to 20 years in prison and a $250,000 fine to use the mails to take money or property from someone by trick or artifice. Yet that, and federal program fraud, another statute ill-suited to the wrong they committed, are the crimes with which they were charged and for which they were convicted.
Failure to give defendants’ fair notice of the conduct a statute sanctions is not the only Constitutional defect of a vague, broadly drawn criminal law. As the Court has explained in several decisions, an ill-defined statute is an unconstitutional delegation of power from the legislature to the executive. It cedes the legislature’s power to make law to the Executive by giving the Executive the authority to decide what conduct a vague statute permits and what conduct it criminalizes. Just as the Court has been unwilling to allow a legislature to pass law delegating the power to decide what’s loitering, or when the flag has been contemptuously treated, or what conduct “presents a serious potential risk of physical injury to another,” (case here) so too it has not been willing to allow Congress to delegate to federal prosecutors the authority to “set standards of disclosure and good government for local and state officials.”
There is one pure motive and two impure ones that explain why the Department of Justice continues to countenance federal prosecution of conduct that any one of the 92 U.S. Attorneys considers corrupt. A prosecution that risks appellate reversal if defendants choose to go to trial rather than plead out.
The pure motive is recounted in List of United States State Officials Convicted of Federal Corruption Offenses. This Wikipedia entry identifies 11 governors, 12 state cabinet officers, and 85 state legislators who have been convicted of federal corruption charges, almost all since the Justice Department’s post-Watergate decision to make public corruption a priority. At least some, if not many, of these officials might have escaped sanction had prosecution been left to state prosecutors. State prosecutors may be part of a tight-knit ruling elite and thus either profit directly from corruption or fear the reproach of friends and colleagues if they were to “upset the apple cart” by going after corrupt members of the elite.
A stark example of the latter was Illinois prosecutors’ several decades failure to bring cases against Chicago judges for taking bribes on cases ranging from parking violations to homicide. The corruption was notorious, and while no evidence ever emerged that the prosecutors were themselves corrupt, they were part of the political machine behind the corruption. It took federal prosecutions to clean up the local court system.
Much has changed since the mid-nineteen seventies when federal prosecutors launched their attack on state and local corruption. As explained in an earlier post, many states are strengthening their ability to investigate and prosecute corruption. Indeed, the state prosecutor in Chicago is no longer part of an old-boy network. Rather, she was elected on a promise to clean up the network. So even if the motive for a federal prosecution is pure, as times have changed, the rationale for federal prosecution has weakened.
And that rationale is no justification for one impure motive behind some federal prosecutors continued failure to abide by Supreme Court precedent condemning the use of broadly drawn federal statutes to prosecute state and local corruption. Corruption charges against a public official is front-page news, and it is a very large feather in the hat of any prosecutor who brings a case and secures either a guilty plea or a conviction. One need look no further than what motivated Trump lawyer and confident Rudy Giuliani to bring a federal prosecution against a high ranking New York City politician. As his term as U.S. Attorney for the Southern District of New York was winding down, he wrestled a bribery case involving Queens borough president Donald Manes away from state prosecutors and, as Johnny Dwyer explains in his book on New York federal prosecutors, “took the extraordinary next step to personally prosecute” the case. A prosecution that featured prominently in his campaign two years later for New York City mayor.
If the Giuliani example shows one impure motive for the Justice Department’s continued prosecution of state and local officials for corrupt conduct other than bribery, Bridgegate could well be an example of another impure motive. The Court in Bridgegate noted defendants could have been charged with violating New Jersey Statute 2C:30 – 2, which makes it an offense for a public servant to injure a person through the “unauthorized exercise of his official functions knowing that such act is unauthorized.” As defendants’ traffic jam stunt falls squarely within its prohibitions, the question arises as to why federal prosecutors felt the necessity of contorting the federal mail fraud and program fraud statutes beyond recognition to fit defendants’ conduct when a state statute condemning the conduct was at hand.
It might have been that federal prosecutors didn’t trust New Jersey’s prosecutors to pursue the case, but that seems unlikely. Thanks to media coverage and a legislative inquiry, it was quickly apparent who had engineered the bridge closure cum traffic jam and why. A refusal to prosecute, particularly in the face of a statute that plainly criminalized the conduct, would have met with a storm of criticism. Perhaps, as with the Giuliani prosecution, federal prosecutors simply asserted primacy, a possibility one close observer suggests.
But is also possible state and federal prosecutors agreed that a federal prosecution was preferable. On paper a violation of the New Jersey abuse of power statute is a far less serious offense than a violation of the federal mail or program fraud law. The former carries a prison sentence of two to five years with probation for a first offense likely whereas both mail and program fraud laws each carry a maximum of 20 year maximum under federal law. One could imagine a meeting where state and federal prosecutors decided that, in light of the 20-year maximum, and likelihood that under the federal sentencing guidelines defendants would do real jail time, charging them with the more serious federal offenses was warranted. And likely ensured they would plead guilty.
If this were the thinking, and if it were not one can surely imagine cases where it has been, prosecutors would have been abrogating to themselves the decision on sentencing. A decision that under the American criminal justice system is left to the judiciary.
Whether prosecutors bring corruption charges with best of intentions or not, the Supreme Court has made it clear that if the conduct charged is anything but bribery, the case cannot withstand scrutiny. Should the Justice Department continue to ignore the law risking than anytime defendants risk a trial they are, if convicted, likely to win a highly publicized acquittal on appeal? An acquittal that, as in Bridgegate, fuels public cynicism in the American legal system’s ability to police corruption?