State prosecutors and voters – not the feds – can hold corrupt officials accountable

Two high-ranking officials^[1] with ties to New Jersey Gov. Chris Christie hatched a plot in 2013^[2] to punish the Democratic mayor of Fort Lee, New Jersey^[3], a town adjacent to the George Washington Bridge – the busiest bridge in the world^[4]. The reason for targeting the mayor: his refusal to endorse Christie for reelection^[5].

To inflict pain on the mayor, the aides ordered lane closures^[6] on the bridge under the guise of a sham “traffic study,” causing massive backups – with school buses idling in traffic for hours and emergency vehicles and ambulances blocked. A public uproar ensued.

The press swarmed, the plot unraveled and the state legislature^[7] began an investigation, as did the U.S. attorney^[8] for New Jersey.

Two aides were charged^[9] and convicted^[10] under a federal wire-fraud statute for misusing federally funded programs to support what was, essentially, a political stunt: closing the lanes of the bridge.

Those convictions were recently reversed^[11] by the Supreme Court. That decision comes in the wake of several high-profile vindications of politicians who behaved badly, leading some to question whether misfeasance and malfeasance by government officials can ever be punished.

The 9-0 ruling^[12] raised cries that the Supreme Court has crippled the anti-corruption power of federal prosecutors and opens the door to manipulation of government programs for political advantage.

As a long-time attorney defending public corruption cases and teaching white-collar crime at Penn State law school^[13], I believe that corrupt government figures can still be held accountable – but perhaps not by federal prosecutors.

Hinges on fraud

The Bridgegate case prosecution hinged on proving that the defendants violated two federal laws against fraud. One makes it a crime^[15] to carry out any scheme to defraud or to obtain money or property by means of false or fraudulent pretenses.

The other bars “obtaining by fraud”^[16] the property or money of a federally funded program or entity.

In its reversal of the convictions, the Supreme Court said that “commandeering” the lanes – even for a political purpose – was essentially a regulatory decision. It did not involve either property or money, which the fraud laws require for conviction, and thus it was not illegal.

As Justice Elena Kagan wrote for the court^[17]: “The evidence the jury heard no doubt shows wrongdoing – deception, corruption, abuse of power. But the federal statutes at issue do not criminalize all such conduct.”

This is in line with previous Supreme Court rulings, where the justices have refused to read unjustified or politically motivated regulatory actions as violations of the fraud statutes’ protection of money and property.

In McDonnell v. United States^[18], for example, the court reversed the conviction^[19] of Gov. Bob McDonnell of Virginia for honest services fraud^[20]. This offense is a variation of the general anti-fraud statute which prevents officials from denying citizens their right to their honest services by failing to disclose conflicts of interest resulting in personal gain.

McDonnell had accepted over US$175,000 from a businessman who wanted state help. The court ruled that^[21] while the case featured “tawdry tales of Ferraris, Rolexes, and ball gowns,” the prosecution’s approach was so broad as to criminalize conduct that politicians routinely and innocently engage in.

Bringing it all back home

There is a way that politicians can be punished if they are corrupt, without resorting to the failure-prone federal prosecutions: state laws and elections. In other words, federalism^[22], the system of government in the U.S.^[23], where the federal government carries out some responsibilities and the states carry out others^[24].

In these kinds of cases, I believe state prosecutions are more likely to be successful. And of course, there’s the other local way of holding politicians accountable: voting them out of office.

As the Supreme Court has said^[25], federal prosecutors may not use property fraud statutes to set “standards of disclosure and good government for local and state officials.”

In the Bridgegate case, a broad investigation by the New Jersey state legislature^[26] – which could have resulted in state charges – was underway when the federal-level U.S. attorney began an investigation and effectively shut down the state’s inquiry.

The move by federal prosecutors to pursue political corruption in the states began with the late U.S. attorney for New Jersey, Fred Lacey^[28]. In the 1960s and 1970s, he began using the fraud statutes against local corrupt officials in New Jersey. Federal prosecutors’ argument for elbowing into state matters like these was that local prosecutors were unlikely to go after state and local officials. As U.S. Attorney General Ed Meese^[29] put it in 1986, “We intend to go on knocking such corrupt heads – that’s our business, that’s our duty.”

But at the time, prominent crime-busting Manhattan prosecutor Robert Morgenthau didn’t see it that way.

“Fraud, extortion, bribery – these are basically local crimes,” he said^[30]. “It’s important as a matter of principle to show that local law enforcement can clean up its own house, rather than relying on the Feds to do it.”

There were at the time numerous examples of local law enforcement initiatives against corruption – like the Knapp commission^[31] in New York City investigating police corruption.

But the federal prosecutions initiated by the New Jersey U.S. attorney started a trend that spread across the country. His efforts sparked a movement that led to federal prosecutions of state and local officials from legislators and governors to building inspectors and garbage collectors^[32], reaching into the thousands over the decades. While lower federal courts endorsed these expansive moves by prosecutors, they have once again been curtailed by the Supreme Court.

As Sara Silva, a white-collar defense lawyer, said in the Wall Street Journal^[33] after the court threw out the convictions, the Bridgegate case is a necessary restraint on federal prosecutors who pushed the boundaries to bring public corruption cases. Silva said those kinds of prosecutions threaten to bypass the democratic process, where local voters could simply throw out a corrupt politician in the next election.

“It is a dangerous approach,” said Silva. “My hope is prosecutors will really listen and trust the public to respond to officials who make bad decisions by voting them out of office.”

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References

1. ^{^} Two high-ranking officials (www.northjersey.com)
2. ^{^} hatched a plot in 2013 (www.theguardian.com)
3. ^{^} Democratic mayor of Fort Lee, New Jersey (www.fortleenj.org)
4. ^{^} the busiest bridge in the world (abcnews.go.com)
5. ^{^} refusal to endorse Christie for reelection (www.burlingtoncountytimes.com)
6. ^{^} aides ordered lane closures (www.northjersey.com)
7. ^{^} state legislature (www.msn.com)
8. ^{^} U.S. attorney (www.nj.com)
9. ^{^} Two aides were charged (www.npr.org)
10. ^{^} convicted (www.cbsnews.com)
11. ^{^} recently reversed (www.nbcnewyork.com)
12. ^{^} 9-0 ruling (www.politico.com)
13. ^{^} teaching white-collar crime at Penn State law school (pennstatelaw.psu.edu)
14. ^{^} Alex Wong/Getty Images (www.gettyimages.com)
15. ^{^} One makes it a crime (www.law.cornell.edu)
16. ^{^} The other bars “obtaining by fraud” (www.law.cornell.edu)
17. ^{^} Justice Elena Kagan wrote for the court (www.nytimes.com)
18. ^{^} McDonnell v. United States (theconversation.com)
19. ^{^} reversed the conviction (www.vox.com)
20. ^{^} honest services fraud (www.theatlantic.com)
21. ^{^} court ruled that (www.oyez.org)
22. ^{^} federalism (www.britannica.com)
23. ^{^} system of government in the U.S. (www.pbs.org)
24. ^{^} the states carry out others (www.history.com)
25. ^{^} As the Supreme Court has said (supreme.justia.com)
26. ^{^} broad investigation by the New Jersey state legislature (www.politico.com)
27. ^{^} Arty Pomerantz/New York Post Archives via Getty Images (www.gettyimages.com)
28. ^{^} Fred Lacey (www.nytimes.com)
29. ^{^} As U.S. Attorney General Ed Meese (press.uchicago.edu)
30. ^{^} he said (www.nytimes.com)
31. ^{^} the Knapp commission (www.wnyc.org)
32. ^{^} federal prosecutions of state and local officials from legislators and governors to building inspectors and garbage collectors (www.ncjrs.gov)
33. ^{^} in the Wall Street Journal (www.wsj.com)
34. ^{^} Sign up for our weekly newsletter (theconversation.com)