In a unanimous decision, the United States Supreme Court recently threw out the conviction of two New Jersey political operatives, Bridget Anne Kelly and Bill Baroni (Kelly vs. The United States). For three days in September 2013, the two closed down most lanes of the New Jersey highway leading to the George Washington Bridge into New York City, in a scheme to punish the Mayor of Fort Lee, New Jersey. Since Mayor Mark Sokolich had declined to endorse Chris Christie’s campaign for reelection as Governor of New Jersey, the two operatives decided to punish the Mayor. As a side effect, they would incidentally injure the public, cause massive traffic jams on the first four days of the school year, force the Port Authority to hire additional staff to manage the traffic snarl, and, as it happened, delay police efforts to find a missing child.
Lower courts found the two guilty of fraud for misusing their authority, for falsely claiming to conduct a traffic study as an excuse to please their boss.
Writing for the Supreme Court, Justice Elana Kagan explained that ““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.”
Justice Kagan noted that the scheme “jeopardized the safety of the town’s residents.” However, injuring the public to curry favor with a political leader does not constitute a crime, because, though the defendants lied and misused their power, they did not intend to get the Port Authority’s “money or” tangible “property” for their misdeeds. Injuring or endangering the public to achieve an advantage for their boss in the upcoming election does not count as gaining property.
Throughout the case, the defendants claimed that their behavior was “routine” political behavior. President Trump immediately hailed decision as “complete vindication.” Former Governor Christie blamed the Justice Department for pursuing the case, when no federal crime had been committed.
This case has an eerie resemblance to the Supreme Court’s 2016 decision reversing the conviction of former Governor Robert McDonnel of Virginia. McDonnel did favors for a friend, a dealer in diet supplements named Jonnie Williams, Sr. Williams gave Governor McDonnel and his wife gifts worth about $177,000 including vacations, Ferraris, Rolex watches, ball gowns, and loans on favorable terms. When Williams wanted to get official approval for his diet supplement, he asked for help from the Governor, so McDonnel introduced him to the relevant officials, and hosted a luncheon at the Governor’s mansion at which he touted the supplement and passed out samples. At one point, McDonnel emailed Williams to ask for a loan, and then, six minutes later, sent an email to other officials on Williams’ behalf.
Chief Justice John Roberts, writing the decision of the unanimous court, explained that “there is no doubt that this case is distasteful; it may be worse than that.”
However, the gifts were legal. Until recently, Virginia had no law limiting gifts to government officials. Even after Virginia passed a law limiting gifts from lobbyists, the law contained a “personal friends” exception. I do not know whether the Supreme Court ruled that these gifts to McDonnel came before the statute went into effect, or whether the gifts came from a personal friend, and so did not constitute corruption even under the statute. Only some states have rules against gifts to officials, and some of these have the personal friend exception.
McDonnel had been convicted under Federal anticorruption law, which prohibits public officials from agreeing to commit an official act in exchange for something of value. The Supreme Court overturned that conviction, explaining that what McDonnel did, introducing Williams to public officials, or making phone calls on his behalf, does not amount to not an “official act.” Only making a specific decision, or pressuring another official to make a specific decision, would constitute an “official act.”
Roberts further explained that “conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time.” That routine behavior cannot constitute corruption.
Notice the differences between the United States of America and Israel.
The current bribery, fraud, and corruption cases against Prime Minister Benjamin Netanyahu involve charges that could hardly appear in a court of the United States. Prime Minister Netanyahu is a head of state; as we learned in the Mueller report, Department of Justice in the United States prevented Mueller from considering charges, or even investigating evidence, against the sitting president. The Supreme Court of the United States is now considering whether state governments can investigate the President even for actions taken before he assumed office. The President has also claimed the right to prevent any member of the executive from testifying before Congress, on the grounds of executive privilege (an ill-defined but recognized part of American law), “absolute immunity” (an untested new concept), and “the unitary executive” (the claim that every member of the executive branch represents the President, and shares presidential immunity). The Supreme Court now considers these claims as well, with no decision expected before the November election.
Prime Minister Netanyahu faces charges in Israel based on gifts from wealthy friends that he and his wife have received over the years. Some states of the United States do not prohibit officials from receiving gifts; some other states have such a prohibition, but may also have an exception for personal friends.
Prime Minister Netanyahu faces charges in Israel for offering help to a newspaper publisher in exchange for favorable coverage. According to the decisions in the McDonnel and Kelly cases, a prosecution in the United States under the federal law could not cover corruption for an abstract benefit such as favorable coverage, rather than for money or tangible property.
Other charges against the Prime Minister involve alleged bribery. The equivalent charge does exist in the United States, since bribery remains illegal. However, if I understand the relevant decisions, it seems that a government official would have to make an unusually explicit sale of a narrowly defined kind of official act to get into trouble for bribery. Any subtlety at all would seem to protect an official from prosecution.
It seems like a culture clash. The highest court in the cynical, jaded United States, has come to terms with a grubby reality in which political leaders receive gifts from their wealthy friends, even beg for these gifts, and then act to benefit the friends (just avoiding “official actions”). Political underlings can take deceptive, corrupt, and abusive actions that harm the public to please their bosses, or to help their bosses get elected, with the court’s reluctant blessing. It remains to be seen whether the court will also bless any and every act of corruption by the President of the United States as long as he holds office.
Meanwhile, the courts in youthful, innocent, idealistic, Israel maintain that even the sitting Prime Minister can be compelled to answer to the demands of justice.
Dear reader, which course seems wiser to you?