So You Think You Want To Prosecution?

May 12 | Posted by mrossol | Losing Freedom, US Constitution

A Primer to entice you to learn more about the law.  

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WSJ 5/12/20

Springtime for overzealous prosecutors looking for a political score is over. The Supreme Court on Thursday in Kelly v. U.S. unanimously reversed public corruption convictions of two aides to former New Jersey Gov. Chris Christie, reaffirming that not all sleazy, self-serving behavior by public officials is criminal.

In 2015 a U.S. Attorney appointed by Barack Obama charged Bridget Anne Kelly and William Baroni for conspiring to cause a traffic jam on the George Washington Bridge in apparent political retaliation against a Democratic mayor who refused to endorse Mr. Christie’s re-election. The defendants copped to an abuse of political power, and Mr. Christie paid a steep political price.

But the Court in Skilling v. U.S. (2010) limited the catch-all honest-services fraud statute to kickbacks and bribes. Since neither defendant benefited financially from their “Bridgegate” scheme, prosecutors argued that they deprived the government of a property interest in two closed lanes and misused federal dollars by assigning public workers to conduct a sham study. This was a concocted crime.

“The evidence the jury heard no doubt shows wrongdoing—deception, corruption, abuse of power,” Justice Elena Kagan writes for the Court. But the federal government cannot “use the criminal law to enforce (its view of) integrity in broad swaths of state and local policymaking.” She adds: “Not every corrupt act by state or local officials is a federal crime.”

The Court’s precedents have long held that a simple exercise of regulatory power can’t be charged as property fraud. “The two defendants did not ‘commandeer’ the Bridge’s access lanes (supposing that word bears its normal meaning),” Justice Kagan explains. What’s more, “employees’ labor was just the incidental cost” rather “than itself an object of the officials’ scheme.”

Some public misconduct may still be criminal—such as if a politician directed government employees to do gardening work for political contributors, Justice Kagan notes. But the Court in Skilling “specifically rejected a proposal to construe the [honest-services fraud] statute as encompassing ‘undisclosed self-dealing by a public official,’ even when he hid financial interests. The upshot is that federal fraud law leaves much public corruption to the States (or their electorates) to rectify.”

This is judicial and political wisdom. In recent years too many prosecutors have exploited vague statutes to attack political opponents or make a name for themselves. This has taken the U.S. far down the road to criminalizing political differences—which corrupts both the law and politics. We have consistently argued, including in the prosecution of New Jersey Democratic Sen. Robert Menendez, that sleazy behavior should be left to voters to punish.

To its great credit, the Court under Chief Justice John Roberts has been doing yeoman’s work reining in free-wheeling prosecutors who want to turn garden-variety political misconduct into federal crimes. This includes Justices across the ideological spectrum. Justice Kagan’s opinion builds on Skilling, as well as the McDonnell landmark (2016) that narrowed an “official act” under federal bribery laws to a formal exercise of government power related to a “specific” matter.

By the way, the Court’s ruling also repudiates the amicus brief filed in Kelly by Rhode Island Sen. Sheldon Whitehouse urging the Court to rule against the Christie aides and overturn McDonnell and Skilling. The Senator is Exhibit A in seeking to criminalize political differences.

Every public official should be thankful that America is a nation of laws, not men, as the Court’s Kelly decision wisely reaffirms.

Source: A Bad Day for Bad Prosecutions – WSJ

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