The Supreme Court’s Decision in “Bridgegate” is not Novel

Last week the Supreme Court overturned two lower court convictions of political allies of then-Governor of New Jersey, Chris Christie.  The political allies were Bridget Kelly and William Baroni, Jr. who plotted to back up traffic on the George Washington Bridge connecting Fort Lee, New Jersey to Manhattan. Their reason was to “punish” the mayor of Fort Lee for refusing to endorse Christie’s reelection bid.  The case is Kelly v. U.S.  

“Time for some traffic problems in Fort Lee,” Kelly wrote to officials at the Oort Authority, which operates the bridge.  Justice Kagan’s, unanimous opinion called it an admirably concise email.  Supreme Court watchers have called the decision another in a recent bid by the Supreme Court to rein in federal prosecutors who pursued criminal convictions over political conduct.  Kagan wrote in her opinion “The evidence the jury heard no doubt shows wrongdoing – deception, corruption, abuse of power.  But the federal fraud statutes at issue do not criminalize all such conduct.  Under settled precedent, the officials could violate those laws only if an object of their dishonesty was to obtain the Port Authority’s money or property.”  The prank by Kelly and Baroni, Jr. was matched by Paul Fishman, former US Attorney who was determined to damage the reputations of as many members of the Christie administration as possible.  Christie was not named as a defendant on the basis he had no part in the matter.  Nevertheless, it was a substantial cause of Christies’ later failed bid for the Republican Presidential nomination.  

The holding is similar to that in McDonnell v. US under a different federal bribery statute, also unanimously reached.  Why is the Court attempting to change behavior of federal prosecutors regarding political actions?  Kagan wrote in the opinion the outcome was dictated by previous opinions, and not a new reading of the law.  Furthermore, she added, “If U.S. Attorneys could prosecute as property fraud every lie a state or local official tells in making such a decision the result would be …’a sweeping expansion of federal criminal jurisdiction.”  It is good that the federal statute in question clearly requires money or property being acquired as an object of the criminal behavior. On a larger view I question why Congress has statutes relating to State politics at all.  There is no federal authorization in the Constitution for the federal government to reach a state actor on this sort of behavior.  Congress has a habit of creating weapons to be used against political actors across state lines.  Can they not see enough corruption on the federal side of the Constitutional line?  In my opinion, it is bad enough for this partisanship to be carried out in the media and in the Congress where the responsibility off the members to act as adults is expected, but never achieved.  The Supreme Court’s purpose is admirable, but to this point is only half a loaf.  The other half is to remove the offending weapons from the books.  If the weapon is there, it will be used, and the actors are not limited by any civilizing responsibilities.  

What sort of opinion was the court expected to produce for Bridgegate, or any of the cases most commentators referred to as similar to the Bridgegate outcome.  I know of only one commentator self-identified in the Washington Post as a Legal scholar, Leah Litman, on why the Bridgegate case failed.  By “failed” Ms. Litman meant the convictions of the two conspirators, Kelly and Baroni, Jr. were not upheld.  The Post’s headline for the opinion-page item is “It shouldn’t be so hard to lock up corrupt officials.”  Ms. Litman goes on “it was only the latest in a string of failed corruption cases”.  Personally, I don’t think much of Ms. Litman’s legal reasoning, saying, “Somehow, the justices of the Supreme court held unanimously, in Kelly v. United States, that this violated no federal laws.”  It was because the decision was correct! They upheld the “rule of law”.                                                                                                          May 11, 2020The Ru