State Prosecutors and Voters—​​​​​​​Not the Feds—​​​​​​​Can Hold Corrupt Officials Accountable

Former Virginia Gov. Bob McDonnell speaks outside the Supreme Court in Washington in 2016. The court overturned his corruption conviction.

Former Virginia Gov. Bob McDonnell speaks outside the Supreme Court in Washington in 2016. The court overturned his corruption conviction. AP Photo

 

Connecting state and local government leaders

COMMENTARY | U.S. Supreme Court decisions could make it more difficult to prosecute public corruption cases in federal court. But that doesn't mean there aren't other options.

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

To inflict pain on the mayor, the aides ordered lane closures 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 began an investigation, as did the U.S. attorney for New Jersey.

Two aides were charged and convicted 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 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 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, 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 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” 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: “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, for example, the court reversed the conviction of Gov. Bob McDonnell of Virginia for honest services fraud. 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 $175,000 from a businessman who wanted state help. The court ruled that 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, the system of government in the U.S., where the federal government carries out some responsibilities and the states carry out others.

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, 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—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. 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 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. “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 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, 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 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.”

The Conversation

Stanley M. Brand, Distinguished Fellow in Law and Government, Pennsylvania State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

NEXT STORY: Is It Time to Create a National Registry of Police Misconduct?

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.