Tag Archives: New Jersey

The U.S. Supreme Court’s Opinion in the “Bridgegate” Case: Some Quick Reactions

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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: Continue reading →

Best Practices for a “Database of Deals”

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Last month, Joseph Percoco, former aide to New York Governor Andrew Cuomo, was found guilty of conspiracy to commit fraud and soliciting bribes for nearly $300,000 in connection to several multimillion-dollar economic development contracts in upstate New York. Next month, Alain Kaloyeros, the former President of the State University of New York Polytechnic Institute, will similarly go to trial on federal bid rigging, fraud, and bribery charges related to the upstate economic development project the “Buffalo Billion.” As I previously wrote, these are two of six high-profile corruption trials in New York this year—cases that have already generated calls for ethics reform (see here, here, and here). While similar calls for reform after the high-profile convictions of former New York state legislators Sheldon Silver and Dean Skelos were largely ignored, one modest proposal seems particularly promising: creating a public database of businesses and organizations that are awarded state economic development contracts and grants.

New York state and local governments spend over $8 billion on economic development programs each year, the most of any state in the country. However, little clarity exists about which companies receive subsidies, the value or amount of these subsidies, the employment and investment commitments tied to these subsidies, and whether these commitments are being met. This opacity not only makes it difficult to assess the successes and failures of development programs, but also creates opportunities for the type of corruption that ensnarled Mr. Percoco and Mr. Kaloyeros. Creating a database of all public economic development benefits (including grants, loans, or tax abatements) would increase transparency and accountability. Such a “Database of Deals” would provide a central source for authorities to monitor and flag irregularities, increasing public confidence in the procurement process, and deterring corruption by individuals who know that the public can assess the return on investment for each economic development project.

The recently passed 2019 New York State Budget included billions of dollars in new appropriations for economic development, yet bi-partisan legislation creating a “Database of Deals” was dropped from the budget the day before it passed. However, the New York state legislature still has several months to pass similar legislation. Moreover, six other states—including Florida, Maryland, Indiana, Illinois, and Wisconsin—have created and implemented similar searchable databases after calls for greater transparency and accountability. If and when New York, and other states, create similar databases, there are certain “best practices” that they ought to follow, to maximize the effectiveness of these databases in deterring corruption.

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Senator Menendez and the Great Speech or Debate Clause

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The corruption allegations against Senator Robert Menendez (D-NJ) have the hallmarks of a classic Capitol Hill scandal. The Department of Justice’s Public Integrity Section indicted Senator Menendez last spring for allegedly using his official position to promote the business and personal interests of his friend and long-time donor Dr. Salomon Melgen, a Florida ophthalmologist. According to the allegations, Dr. Melgen provided Senator Menendez with lavish trips to Florida, Paris, and the Dominican Republic, as well as political contributions to allies. In exchange, Senator Menendez allegedly interceded with immigration authorities to help Dr. Melgen secure visas for his foreign girlfriends, sought to influence an administrative enforcement action against Dr. Melgen for $8.9 million in Medicare overbilling, and pressured the Executive Branch to intervene in Dr. Melgen’s contract dispute with the Dominican Republic.

Unsurprisingly, this legal fight has been ugly. Senator Menendez and his legal team have accused the prosecution of gross misconduct in the grand jury investigation, of “misapplying” and “making up from whole cloth” certain legal standards, and “disparaging defendants’ motives and defense counsel.” The prosecution, for its part, has accused the Senator’s camp of deploying “vituperation” instead of substance and of advancing “false factual premises and specious legal reasoning.”

The latest iteration of this saga is taking place at the appellate level, where the Third Circuit recently heard oral arguments on Senator Menendez’s assertion that his actions on behalf of Dr. Melgen are entitled to immunity under the U.S. Constitution’s “Speech or Debate” Clause (an argument the trial court rejected). The Speech or Debate Clause provides that “for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.” Like many legislative immunity clauses in other countries, the Speech or Debate Clause was born in part out of a desire to protect legislators from political prosecution for the views they express when legislating, and to encourage free and informed debate.

U.S. courts have interpreted the Clause quite generously over the years, reading it to cover not only actual speeches and debates, but also other “legislative acts” (such as voting on legislation, authorizing an investigation by a Congressional Committee, preparing reports, and holding hearings). Senator Menendez, however, argues for an even broader understanding of the conduct that qualifies as “legislative acts” shielded by the Clause. These arguments should be rejected. Not only are Senator Menendez’s claims legally dubious under existing precedents, but, if accepted, they would also hamstring the prosecution of classic quid pro quo corruption.

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Guest Post: “Global Cities–Joining Forces Against Corruption” Conference Recap, Part 2

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Jennifer Rodgers and Gabriel Kuris, the Executive Director and Deputy Director, respectively, of the Columbia University Center for the Advancement of Public Integrity (CAPI), have provided a two-part series of guest posts summarizing CAPI’s conference on “Global Cities–Joining Forces Against Corruption”, which we previously advertised on GAB. This is the second of the two posts. (Part 1 can be found here.)

The CAPI “Global Cities” conference featured two speakers who discussed their own experience working to promote strong municipal anticorruption enforcement, though there could hardly be a wider gulf in the circumstances they currently face. Commissioner Mark Peters of the New York City Department of Investigation (DOI) talked about about his office’s strong history of combating not only corruption but waste and mismanagement in NYC government, and Lev Pidlisetskyy of Ukraine’s Parliament gave an inside account of the incredible challenges his brand-new political party faces in fighting the massive and entrenched corruption left over from the Yanukovich era by instituting reforms in the judiciary, decentralizing authority, and engaging the public through new transparency tools

The panel discussion on “Engaging the Public: Mobilizing Citizens, Civil Society, and the Media” looked at the how cities can effectively partner with outside entities to better fight corruption. Athanasios Tsiouras of the Athens Mayor’s Office described Athens’ sophisticated and award-winning online platform for disbursing important information and collecting citizen complaints. Jose Ramon Amieva of the Mexico City Mayor’s Office spoke about major efforts to streamline local government processes like obtaining permits and licenses. And Fuad Khoury, the Comptroller General of Peru, discussed his office’s unique Young Auditors Program, which enlists students and teachers nationwide to help root out corruption, waste, and inefficiency. Dick Dadey, of Citizens Union of the City of New York, provided a civil society perspective, encouraging city governments to utilize networks of good government groups to make change. And Jeri Powell of New York City’s DOI took a historical view, emphasizing the importance of gaining the public’s trust in fighting corruption.

The next panel, “Game Changing Cases: An Inside Look at Breakthrough Investigations” featured prosecutors from all over the world discussing some major law enforcement successes, as well as the challenges they confront. A leading prosecutor from Venice explained a highly successful case in which 50 defendants, including a sitting mayor, were arrested for corruption offenses. New York federal prosecutors generated a lively discussion by describing a bribery case against a sitting state legislator, charged after another legislator agreed to cooperate with authorities and wear a recording device during his interactions with his colleague. A leader from the Catalan antifraud office described working on a variety of cases that help local officials build their own integrity systems. And a Malaysian prosecutor explained how a major case, built up during an extensive and lengthy investigation, was derailed by a defendant’s suicide while in custody.

Finally, “Ensuring a Clean Clean-Up: Fighting Fraud in the Wake of Disaster” provided an illuminating and instructive look at corruption risks related to major events that city governments should plan for to avoid making a bad situation worse. A member of the U.S. Attorney’s Office for the Eastern District of Louisiana spoke about how his office got up and running in the wake of Hurricane Katrina and what they would do differently today. Steve Lee, the Acting Director of the Department of Consumer Affairs of New Jersey, drew practical lessons from what kinds of consumer frauds his office has handled since Hurricane Sandy. And Alan Brill from Kroll provided a fascinating look at how easily criminals can steal unwitting citizens’ identities by setting up bogus free wifi sites, and how we can better protect ourselves against this kind of fraud.

From Perth to Barcelona, from Lima to Toronto, cities have become crucial battlefields in the fight against corruption. The citizens of the world’s growing urban majority are demanding fair and honest services from local governments, putting cities on the vanguard of public integrity enforcement and innovation. CAPI’s inaugural Global Cities conference made a compelling case that the international anticorruption community can learn from the voices of the local practitioners, policymakers, and public citizens working to clean up city halls worldwide. Interested readers can learn more about the conference from the online  videos, presentation slideshows, and other conference materials. And don’t forget to register now for CAPI’s upcoming online discussion forum on which we’ll soon be dissecting what we learned at Global Cities in greater detail with the participants!