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?
GAB | The Global Anticorruption Blog 
I may write a longer response later, but for now, a couple of questions:
(1) What are all these commentaries blaming the Supreme Court for the Bridgegate defendants getting off of which you speak? Most of the commentaries I’ve seen acknowledge that the Court may have been correct (or at least took a defensible position) on the legal issue. Even Professor Litman’s Washington Post editorial, which you criticized in last week’s post, criticized the Supreme Court’s line of corruption cases generally, rather than focusing specifically on the Bridgegate case itself. I haven’t seen anything like the attacks on the Court’s decision in the McDonnell case here, and so I’m sincerely wondering what commentaries you’re referring to.
(2) What are your examples of prosecutors going after public corruption cases under the mail and wire fraud statutes that don’t involve bribery or kickbacks? You seem to imply there are lots of them, but I can’t think of many (or really any besides Bridgegate) in the last 10-15 years. Sure, there have been other cases that the courts threw out, like McDonnell, but those were bribery cases, where the question was whether the elements (e.g. “official act”, quid pro quo) were satisfied.
By the way, one small correction: You write that “the only corruption offense[s] [by state and local officials] the [Supreme] Court has sanctioned under current federal law” are “those involving bribery,” Not so. The Court has held that bribery and kickback schemes are the only sorts of things that are considered “honest services fraud” under the mail and wire fraud statutes. But the federal programs statute (Sec. 666), which you do mention later in your post, expressly prohibits embezzlement and other forms of misappropriation of government property. And there may be other kinds of mail/wire fraud that we’d consider corruption, and consider clearly prohibited by the statute, that don’t involve bribery. For example, suppose a state health inspector sends notices on official department stationary to a bunch of restaurants asserting (falsely) that they have to pay certain licensing fees, but in fact the inspector is pocketing the money. That’s not bribery, but it’s clearly corrupt, and in my view also clearly mail fraud. Do you really think the US Department of Justice should declare that it wouldn’t prosecute such a case? I suspect that this is probably just an issue of inartful or overbroad phrasing on your part, and that what you meant was that the DOJ should declare that it won’t try to push the bounds of honest services fraud beyond bribery/kickback schemes.
1) I grant that the commentary on Bridgegate has been less heated and more measured than it could have been. An example is your post last week. Nonetheless, the Court has taken it on the chin from several sources. Most disappointing was Noah Bookbinder’s tweet: “the Supreme Court has once again weakened federal corruption laws. This is a trend, and the fact that the opinions are unanimous does not make them less dangerous.” Bookbinder heads Citizens for Responsibility and Ethics in Washington, an important advocacy group that many listen to.
Equally wrong-headed assessments appeared in opinion journals of note. Consider these headlines on stories about the decision:
The Nation: “The Supreme Court Has Given Its Blessing to Public Corruption.”
Vox: The Supreme Court’s “Bridgegate” decision leaves a big hole in America’s anti-corruption laws.”
The Atlantic: “The Supreme Court Says Sorry, It Just Can’t Help With Political Corruption.”
2) On examples of public corruption prosecutions under the mail and wire fraud statutes for cases not involving bribery, one is the 2008 conviction of Chicago mayoral aid Robert Sorich on mail fraud charges for patronage hiring in violation of a civil consent decree (523 F.3d 702) and another the convictions, for engaging in garden variety patronage practices, that the Supreme Court overturned in McNally. It is hard to ferret out such cases because often when a defendant accepts a plea bargain, the only thing said about the case is that he or she pled guilty to mail fraud.
Perhaps federal prosecutors are trying to stretch mail and wire fraud and federal program charges as often as one might think. That could be both good and bad news. Good news they are adhering to the Court’s rulings, but bad news if, as a result, much state and local corruption is not being prosecuted. Again, back to the question we discussed last week. A lack of data on state and local corruption.
3) Your point that section 666, the federal program fraud statute, reaches more than corruption depends upon how you define corruption. I think of corruption as involving two or more parties, and thus differentiate it from fraud and embezzlement, both of which can be committed by a single individual. But that’s a semantic quibble, and in any event, you make the point in your comment clearer than I did in the post. Next time I will, as you suggest, write that the DoJ should declare that it won’t try to push the bounds of honest services fraud beyond bribery/kickback schemes.
Have you ever thought of editing a blog? Think you would be great at it.