When is Politics Criminal?

At the end of June, the Supreme Court agreed to hear Bridgette Anne Kelly’s appeal of the Third Circuit’s decision upholding her conviction for wire fraud.  In hearing Ms. Kelly’s appeal, the Supreme Court will once again be asked to determine exactly when public officials’ poor governance results in federal criminal liability.

Background

Ms. Kelly’s conviction stems from Bridgegate, the eponymous scandal resulting from lane closures on the George Washington Bridge in 2013.  At the time, Ms. Kelly was Deputy Chief of Staff to then New Jersey Governor Chris Christie.  

At trial, the Government alleged that Ms. Kelly and others conspired to punish the Mayor of Fort Lee New Jersey for failing to endorse Governor Christie’s reelection.  In seeking retribution, they concocted a traffic study requiring the George Washington Bridge in New York to go from three lanes to one. This would result in traffic being diverted from the bridge and congesting Fort Lee’s motorways.  By misrepresenting their motives—to study traffic as opposed to punish a political enemy—the Government’s theory was that Kelly and her coconspirators deprived the Port Authority of, and obtained for themselves, the labor and costs associated with conducting the traffic study.  Kelly was convicted of multiple offenses at trial, including the wire fraud count, which the Third Circuit affirmed.

Question Before the Court 

This fall, the Supreme Court will decide whether a public official’s failure to disclose their subjective motivation for a particular action is criminal.  Petition for Writ of Certiorari, Kelly v. United States, No. 18-1059, 2019 WL 645257 (Feb. 12, 2019).  This naturally raises the question: shouldn’t every politician be thrown in jail?  While some may find that result satisfying, it cannot be the law. The number of hypothetical actions that would give rise to criminal liability if Ms. Kelly’s conviction is affirmed boggles the mind. Some examples include:

• Directing municipal workers to prioritize repairs where a public official’s constituents live;
• Directing an increased police presence to certain areas for the same reason;
• Engaging in the permissible promotion of a campaign donor’s interests; and
• Funding studies of actions that may help or hurt a campaign donor’s business.

One cannot argue that the above actions are laudable, far from it, but they seem perfect candidates for a democracy’s most traditional remedy: voting the bums out of office.  If the subjective motivation of a public official for engaging in a particular activity is the fulcrum by which an otherwise legal act becomes criminal, it is near impossible to name an official act that could not potentially lead to indictment.

Reading Tea Leaves

By granting review, the Supreme Court has signaled some openness to overturning Ms. Kelly’s conviction.  Based on the Supreme Court’s precedent, the rationale for doing so is clear: upholding Ms. Kelly’s conviction would reverse the trend over the last thirty years of limiting the scope of public corruption prosecutions.  The Supreme Court signaled its discomfort with criminalizing bad government in McNally v. United States, overturning a conviction for mail fraud, noting “[t]he language and legislative history of § 1341 demonstrate that it is limited in scope to the protection of money or property rights, and does not extend to the intangible right of the citizenry to good government.”  483 U.S. 350 (1987). In response, Congress enacted 18 U.S.C. § 1346, codifying the so-called honest services theory of corruption. In 2010, the Supreme Court once again limited the reach of corruption prosecutions, citing the vagueness issues inherent to this theory, to only bribes and kickbacks.  Skilling v. United States, 561 U.S. 358, 408–09 (2010).  The Supreme Court also recently overturned the corruption conviction of former Virginia Governor Robert McDonnell, who submitted an amicus brief in support of Ms. Kelly’s petition.  

In Kelly, the Court is likely to deliver a win to public officials practicing politics, shifting responsibility for policing bad governance from the courts and toward the ballot box.

________________________

Image by Paul Merino from Pixabay.