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   CNN | 5/28/2020 | Listen
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Supreme Court is taking away tools prosecutors use to fight corruption

   Updated 12:09 AM ET, Tue May 12, 2020

   Editor's Note: Jennifer Rodgers is a former federal prosecutor, the former executive director of the Center for the Advancement of Public Integrity at Columbia Law School, and a CNN legal analyst. The views expressed in this commentary are her own. View more opinion on CNN.

   (CNN) - Unanimous agreement on any issue with political undertones seems elusive these days, to put it mildly. But the Supreme Court managed to find unanimity last week, when all nine justices agreed to overturn the federal fraud convictions of two members of former New Jersey Gov. Chris Christie's administration for their roles in the Bridgegate scandal.

   Unfortunately, where the justices found common cause seems to be in a distrust of prosecutorial discretion and an acceptance of dishonesty in politics as the status quo. Those views, coupled with an extremely narrow reading of the statute, have led a unanimous court to continue its yearslong trend of diminishing the power of federal prosecutors to fight corruption, which is highly regrettable to those who care about honest government.

   The Bridgegate defendants' corrupt actions are well known. Bill Baroni and Bridget Anne Kelly were convicted of fraud for retaliating against Fort Lee Mayor Mark Sokolich, who refused to support Christie's 2013 reelection bid, by shutting down two of Fort Lee's three dedicated traffic lanes to the George Washington Bridge for four days in September 2013. This created massive gridlock that inconvenienced thousands and even endangered lives.

   As part of the scheme, Baroni and Kelly used a false cover story, claiming the closures were part of a traffic study, and expended Port Authority resources to implement both the scheme and the cover-up.

   As Justice Elena Kagan wrote for the court, the defendants' conduct "no doubt shows wrongdoing -- deception, corruption, abuse of power." The issue was: Did this abuse of power constitute federal fraud under the charged statutes as written?

   The legal issue was fairly narrow. The federal wire fraud and programs fraud statutes require by their terms that the defendant deprive or attempt to deprive someone of property as part of the deceit. In a typical fraud case, the defendant is looking to enrich himself through the swindle by obtaining money or something else of obvious monetary value, easily satisfying this legal requirement.

   However, the Bridgegate defendants argued that in their case the government was not deprived of property, because the defendants had the authority to order the lane closures, and because the purpose of the closures was not to obtain money or property, but to punish a political opponent. Prosecutors countered that in this case "property," as envisioned by the statute, was misappropriated in two ways: by the commandeering of the bridge lanes, and by the misuse of employee time in implementing the shutdown and creating a bogus traffic study to cover up the real reason for it.

   Ultimately, the court agreed with the defendants, finding that the federal fraud statutes charged here, which included wire fraud and federal programs fraud but notably not honest services fraud -- which is the statute typically charged in public corruption cases -- are only violated if "an object of (the defendants') dishonesty was to obtain the . . . money or property."

   The court then found that while employee labor like the kind utilized to implement and conceal the Bridgegate scheme can constitute property under the statute, in this case the acquisition of the property was too incidental to the scheme to justify prosecution. In other words, the scheme required the misuse of property in the form of employee labor, but that wasn't really what the defendants were after. Baroni and Kelly wanted revenge on Sokolich; they didn't care that Port Authority employees wasted hours of their time on the taxpayer's dime making it happen.

   Reasonable people can differ about whether this analysis holds up. Arguably, the expenditure of the property played more than a "bit part," as Kagan put it, in the Bridgegate conspiracy. Indeed, the defendants concocted the cover story in advance, not as an afterthought when their actions gained attention, and would not have proceeded without it because they did not want their true motives known. That seems more integral than incidental to me. But the very fact that a close call on the key question somehow resulted in a unanimous opinion from this usually fractured Supreme Court strongly suggests that there was more at play here.

   As I wrote in January after the Bridgegate oral arguments, the defendants effectively argued that politicians lie all the time, so to criminalize that behavior would go too far, bringing too many governmental actions within reach of these statutes, and giving prosecutors too much discretion. At the time, it appeared by the questions asked that this argument appealed to many of the justices. Now, it appears that it appealed to all of them.

   The problem here is not that the Bridgegate opinion was demonstrably wrong. The problem is the string of losses for prosecutors in public corruption cases at the Supreme Court, most recently in two unanimous opinions overturning appellate courts in unexpected ways -- this case and the McDonnell case in 2016 -- means the ground is constantly shifting under prosecutors trying to build cases against corrupt public officials.

   The court, with its apparent distrust of prosecutors and a willingness to accept corrupt politics as business as usual, keeps changing the rules and snatching away valuable tools that prosecutors need to fight corruption.

   The Bridgegate case in itself may not be the death knell for federal prosecutors' fight against corruption; it involved statutes not often used in such cases and a lack of financial motive that is very unusual, to say the least. But it is another blow to those efforts, which are both challenging enough already, and needed now more than ever.
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