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Is It a Crime When Politicians Lie?

February 5, 2020 by Kevin Gomes


“There’s a clear difference between politics and a crime,” Michael Levy told the Supreme Court in January,1 when he made arguments in a case about New Jersey’s “Bridgegate” scandal. As the justices considered whether or not a public official commits fraud by obfuscating the “real reason”2 behind a decision, they asked both sides tough questions and did not split along ideological lines.3 The Court’s decision could narrow or expand corruption prosecutions against politicians.

The Bridgegate Scheme

The George Washington Bridge is the world’s busiest, carrying 250,000 to 300,000 vehicles daily.4 In 2013, after Mark Sokolich, the Democratic mayor of Fort Lee, N.J., would not endorse the reelection bid of then-Governor Chris Christie, a Republican, officials on Christie’s staff concocted a fake traffic study to shut down all but one bridge lane dedicated to Fort Lee.5 Unbeknownst to local officials, closures took effect on the first day of school, resulting in massive traffic backups that included public safety vehicles seeking a missing child and responding to a cardiac arrest.6 The scheme lasted four days.7 At trial, Bridget Anne Kelly and William E. Baroni Jr. were convicted on the basis of evidence that included Kelly’s now-infamous email announcing it was “time for some traffic problems in Fort Lee.”8

Politics or a Crime?

The deceptive study misused $5,4009 worth of Port Authority employee resources.10 Kelly’s attorney thinks prosecutors incorrectly applied fraud statutes11 since the officials reallocated public resources to another public use12 and did not “receive payments or kickbacks.”13 Government lawyers countered that Baroni commandeered resources14 because he lacked authority to realign lanes.15

Kelly’s attorney, Jacob Roth, says that if a hidden political motive could send a public official to prison,16 it “casts a pall over routine political conduct.”17 Roth offered hypothetical examples, such as a police chief publicly stating concerns about crime to advocate for more officers, while the real goal is to gain favor with a police union.18 “We don’t want public officials acting for personal … partisan or political reasons,” said Roth. “But … the remedy for that is not the federal property fraud statutes.”19 Roth’s preferred remedy is political consequences: Bridgegate damaged Christie’s in-state popularity and his 2016 presidential bid.20

Prosecuting Corruption

The Supreme Court seemed to apply this reasoning in 2016 with an 8-0 unanimous vacating of former Governor Bob McDonnell’s (R-Va.) corruption conviction,21 limiting bribery laws by deciding that McDonnell’s acceptance of $175,000 in money and luxury items (including a Ferrari)22 was not criminal since, as McDonnell’s lawyers said, he only provided “routine political courtesies,”23 such as setting up meetings, in exchange for the items. McDonnell’s lawyers argued, “Mere ingratiation and access are not corruption.”24 Responding to the ruling, Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington, said, “The Supreme Court essentially just told elected officials that they are free to sell access to their office to the highest bidder,”25 and that “if you want the government to listen to you, you had better be prepared to pay up.”26

The McDonnell case reflected many justices’ concerns over “prosecutors’ overly expansive interpretation of federal fraud and corruption laws,”27 concerns echoed in recent decisions that protected “small-time criminal defendants swept up by large-scale prosecutions.”28 Kelly, a single mother of four,29 says she is being scapegoated,30 claiming that Christie (who has called this case politically motivated) knew of the scheme.31

Former federal prosecutor Frank O. Bowman III sees this judicial trend as the Supreme Court “taking ‘an unduly protective view of official misconduct.’”32 Bowman adds, “The notion that what is otherwise plainly a crime becomes permissible because it has a political motive strikes me as just daft.”33  Bowman believes prosecutors need reasonable leeway with fraud statues “to keep up with the crooks, particularly the crooks in public office.”34

A decision in Kelly v. United States is expected in June.

Discussion Questions:

  1. Is it acceptable for public officials to hide true political motives and offer alternative public explanations for their actions? Why or why not?
  2. Should a head public official, like a mayor, governor, senator, or president, always be held accountable for the actions of their staff members? Why or why not?
  3. When filing their appeal to the Supreme Court, Kelly’s attorneys warned of how expanded government prosecutorial power might be used in the current partisan environment. They wrote, “If there is one thing this country does not need right now, it is a rule of law allowing a public official to be locked up based on a jury determination that she ‘lied’ by purporting to act in the public interest or by concealing her ‘political’ purposes.”35 Based on that quote, discuss the following questions:
    • How large a factor do you think partisanship will be in prosecutors’ decisions over which corruption cases to pursue?
    • How concerned are you that prosecutors would pursue corruption cases mostly or entirely for political retribution against their rivals?
    • How involved should courts be in trying to curb government corruption?
  4. If a government official acts for political or personal reasons, should they be subject to fines and jail time, or should their fate be left to voters in the next election? Read the following statements and quotes and decide which you agree with more and why:
    • The best remedy for dishonesty or graft in government is to make the public aware so they can vote on the basis of the potentially offensive actions. From the National Association of Criminal Defense Lawyers’ amicus brief: “If state decision makers deprive the electorate of the candid reasons for policy choices, the solution is at the ballot box, not the jury box.”36
    • If government officials act dishonestly or in their own personal interest or in that of a friend, the remedy should be criminal fraud or corruption charges with accompanying fines and jail time. From Senator Sheldon Whitehouse’s (D-R.I.) amicus brief: “The founders empowered the public to protect the public sphere against corruption, including through the jury box.”37
  5. Respond to the following questions after reading this quote from Whitehouse: “In the same way that a fish may not be aware that it’s swimming in the water, because swimming in water is so much its natural state, I think we have become a little bit desensitized to the extent to which we are now swimming in corruption.”38
    • How prevalent is corruption in U.S. government?
    • How can citizens best address government corruption?

 

 

Sources

Featured Image Credit: https://thehill.com/regulation/court-battles/477797-supreme-court-to-tackle-corruption-questions-in-bridgegate-cas
[1] Northjersey.com: https://www.northjersey.com/story/news/nation/2020/01/14/bridgegate-bridget-kelly-bill-baroni-appear-united-states-supreme-court-arguments/4422233002/
[2] Oyez: https://www.oyez.org/cases/2019/18-1059
[3] SCOTUSblog: https://www.scotusblog.com/2020/01/argument-analysis-justices-tackle-convictions-arising-from-bridgegate-scandal/
[4] ABA Journal: http://www.abajournal.com/web/article/crosstown-traffic-scotus-considers-bridgegate-prosecutions
[5] Ibid
[6] Ibid
[7] Quartz: https://qz.com/1782309/a-criminal-cover-up-on-the-worlds-busiest-bridge-hits-scotus/
[8] ABA Journal: http://www.abajournal.com/web/article/crosstown-traffic-scotus-considers-bridgegate-prosecutions
[9] Quartz: https://qz.com/1782309/a-criminal-cover-up-on-the-worlds-busiest-bridge-hits-scotus/
[10] ABA Journal: http://www.abajournal.com/web/article/crosstown-traffic-scotus-considers-bridgegate-prosecutions
[11] Cornell Law School Legal Information Institute: https://www.law.cornell.edu/uscode/text/18/1343
[12] ABA Journal: http://www.abajournal.com/web/article/crosstown-traffic-scotus-considers-bridgegate-prosecutions
[13] SCOTUSblog: https://www.scotusblog.com/2020/01/argument-analysis-justices-tackle-convictions-arising-from-bridgegate-scandal/
[14] SCOTUSblog: https://www.scotusblog.com/2020/01/a-view-from-the-courtroom-the-bridge-and-tunnel-crowd/
[15] Philadelphia Inquirer: https://www.inquirer.com/news/bridgegate-bridget-kelly-bill-baroni-supreme-court-chris-christie-20200114.html
[16] Crain’s New York Business: https://www.crainsnewyork.com/law/bridgegate-convictions-questioned-us-supreme-court-justices
[17] ABA Journal: http://www.abajournal.com/web/article/crosstown-traffic-scotus-considers-bridgegate-prosecutions
[18] Ibid
[19] Crain’s New York Business: https://www.crainsnewyork.com/law/bridgegate-convictions-questioned-us-supreme-court-justices
[20] Northjersey.com: https://www.northjersey.com/story/news/nation/2020/01/14/bridgegate-bridget-kelly-bill-baroni-appear-united-states-supreme-court-arguments/4422233002/
[21] CNN: https://www.cnn.com/2016/06/27/politics/bob-mcdonnell-supreme-court/index.html
[22] NBC News: https://www.nbcnews.com/news/us-news/former-virginia-governor-robert-mcdonnell-spared-prison-sentence-n599506
[23] Ibid
[24] Ibid
[25] CNN: https://www.cnn.com/2016/06/27/politics/bob-mcdonnell-supreme-court/index.html
[26] Ibid
[27] SCOTUSblog: https://www.scotusblog.com/2020/01/argument-analysis-justices-tackle-convictions-arising-from-bridgegate-scandal/
[28] Northjersey.com: https://www.northjersey.com/story/news/politics/2020/01/13/bridgegate-supreme-court-chris-christies-lane-closers/4420543002/
[29] Northjersey.com: https://www.northjersey.com/story/news/nation/2020/01/14/bridgegate-bridget-kelly-bill-baroni-appear-united-states-supreme-court-arguments/4422233002/
[30] The Hill: https://thehill.com/regulation/court-battles/477797-supreme-court-to-tackle-corruption-questions-in-bridgegate-case
[31] Associated Press: https://apnews.com/20b73a43e891ad63caac459cdc604a0e
[32] ABA Journal: http://www.abajournal.com/web/article/crosstown-traffic-scotus-considers-bridgegate-prosecutions
[33] Ibid
[34] Ibid
[35] NJ.com: https://www.nj.com/news/2019/06/bridget-kelly-is-unbelievably-happy-as-us-supreme-court-agrees-to-hear-bridgegate-case-attorney-says.html
[36] Quartz: https://qz.com/1782309/a-criminal-cover-up-on-the-worlds-busiest-bridge-hits-scotus/
[37] Ibid
[38] The Hill: https://thehill.com/regulation/court-battles/477797-supreme-court-to-tackle-corruption-questions-in-bridgegate-case

 

 

 

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