The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On January 14, the Supreme Court heard argument in Kelly v. U.S., the so-called "Bridge-Gate" case. Two days later, President Trump's impeachment trial began. Two weeks later, the President was acquitted. And two months later, the process has entirely faded from contemporary discourse.
But for some time, we had extensive conversations about articles of impeachment concerning President Trump's conversation with the Ukrainian President. My colleague Seth Barrett Tillman and I weighed in on those debates. I also wrote a widely-discussed op-ed in the Times:
The House seeks to expel Mr. Trump because he acted "for his personal political benefit rather than for a legitimate policy purpose." Mr. Trump's lawyers responded, "elected officials almost always consider the effect that their conduct might have on the next election." The president's lawyers are right. And that behavior does not amount to an abuse of power.
Politicians pursue public policy, as they see it, coupled with a concern about their own political future. Otherwise legal conduct, even when plainly politically motivated — but without moving beyond a threshold of personal political gain — does not amount to an impeachable "abuse of power."
Fast forward to today. The Supreme Court ruled for Bridget Kelly, 9-0. Justice Kagan wrote the Court's unanimous decision. And there are several indirect references to the impeachment trial in her opinion.
Here, Kelly used her official authority to help promote her boss's political prospects:
And Bridget Anne Kelly was a Deputy Chief of Staff to Governor Christie with special responsibility for managing his relations with local officials. She often worked hand-in-hand with Baroni and Wildstein to deploy the Port Authority's resources in ways that would encourage mayors and other local figures to support the Governor. The fateful lane change arose out of one mayor's resistance to such blandishments,
Blandishment refers to "something that tends to coax or cajole." Justice Kagan used a fancy word so she wouldn't hint at Quid Pro Quo!
In 2013, Governor Christie was up for reelection, and he wanted to notch a large, bipartisan victory as he ramped up for a presidential campaign. On his behalf, Kelly avidly courted Democratic mayors for their endorsements—among them, Mark Sokolich of Fort Lee. As a result, that town received some valuable benefits from the Port Authority, including an expensive shuttle-bus service.
Imagine that! Politicians use their official powers in exchange for political support. But the plan didn't work.
But that summer, Mayor Sokolich informed Kelly's office that he would not back the Governor's campaign. A frustrated Kelly reached out to Wildstein for ideas on how to respond. He suggested that getting rid of the dedicated Fort Lee lanes on the Bridge's toll plaza would cause rush-hour traffic to back up onto local streets, leading to gridlock there. Kelly agreed to the idea in an admirably concise e-mail: "Time for some traffic problems in Fort Lee."
Then, Kelly made up a "sham" justification for the closure:
To complete the scheme, Wildstein then devised "a cover story"—that the lane change was part of a traffic study, intended to assess whether to retain the dedicated Fort Lee lanes in the future. Id., at 264. Wildstein, Baroni, and Kelly all agreed to use that "public policy" justificationwhen speaking with the media, local officials, and the Port Authority's own employees. Id., at 265.
The results of the "study" were "discarded":
And the information that the Port Authority's engineerscollected on this singular occasion was mostly "not useful"and "discarded." Id., at 484–485 (Patel testimony). Nor did Wildstein or Baroni show any interest in the data. Theynever asked to review what the engineers had found; indeed, they learned of the results only weeks later, after a journalist filed a public-records request. So although the engineers spent valuable time assessing the lane change, their work was to no practical effect
Kelly also had to hire another toll collector to make the scheme work:
So Wildstein went back to Baroni and Kelly and got their approval to keep one lane reserved for Fort Lee traffic. That solution, though, raised another complication. Ordinarily, if a toll collector on a Fort Lee lane has to take a break, he closes his booth, and drivers use one of the other two lanes. Under the one-lane plan, of course, that would be impossible. So the Bridge manager told Wildstein that to make the scheme work, "an extra toll collector" would always have to be "on call" to relieve the regular collector when he went on break. Id., at 303. Once again, Wildstein took the news to Baroni and Kelly. Baroni thought it was "funny," remarking that "only at the Port Authority would [you] have to pay a toll collector to just sit there and wait." Ibid. Still, he and Kelly gave the okay.
The scheme may have had life-or-death consequences:
The plan was now ready, and on September 9 it went into effect. Without advance notice and on the (traffic-heavy)first day of school, Port Authority employees placed traffic cones two lanes further to the right than usual, restricting cars from Fort Lee to a single lane. Almost immediately, the town's streets came to a standstill. According to theFort Lee Chief of Police, the traffic rivaled that of 9/11, when the George Washington Bridge had shut down. School buses stood in place for hours. An ambulance struggled to reach the victim of a heart attack; police had trouble responding to a report of a missing child.
The Mayor tried to contact the officials, but they ignored him. Politics.
Mayor Sokolichtried to reach Baroni, leaving a message that the call was about an "urgent matter of public safety." Id., at 323. Yet Baroni failed to return that call or any other: He had agreed with Wildstein and Kelly that they should all maintain "radio silence." Id., at 270. A text from the Mayor to Baroni about the locked-in school buses—also unanswered—went around the horn to Wildstein and Kelly. The last replied: "Is it wrong that I am smiling?" Id., at 990 (Kelly text message). The three merrily kept the lane realignment in place for another three days. It
It was a "perfect" decision! Like the transcript.
Here, I see several parallels to allegations in the articles of impeachment. (I will assume for purposes of this post that the allegations in the articles were accurate.)
First, in both cases, government officials used their official power to help re-election prospects. Kelly punished the Mayor Fort Lee for not supporting Governor Christie's re-election. Trump (allegedly) threatened to withhold funding from Ukraine if the President failed to investigate Joe Biden's son, in an effort to help Trump's re-election.
Second, in both cases, government officials cooked up "cover stories" to shield the real motivations behind their actions. Kelly made up a "sham" traffic study, but didn't actually care about the results. Trump (allegedly) demanded an investigation into Burisma corruption, but only cared about the announcement; not the actual results.
Third, in neither case was there a traditional quid pro quo for money or property. The only benefit was political. In the Times, I explained this precise dynamic.
President Trump did not stand to receive any money or property from the Ukrainian president. (The House wisely chose not to charge Mr. Trump with bribery.) As a policy matter, I disagree with Mr. Trump's decision to ask for an investigation of the Bidens. Even if warranted, it should have been avoided at all reasonable costs. The Republic would have been fine if we never learned more about Burisma. But receiving a "personal political benefit" does not transform an otherwise legal action — requesting an investigation — into impeachable conduct.
Fourth, in both cases, government resources were used to pursue the scheme. Kelly had to hire another toll-collector. Trump (allegedly) used State Department resources to withhold the aid. But both uses were "incidental"
By contrast, a scheme to usurp a public employee's paid time is one to take the government's property. But Baroni's and Kelly's plan never had that as an object. The use of Port Authority employees was incidental to—the mere cost of implementing—the sought-after regulation of the Bridge's toll lanes.
Fifth, in both cases, the government officials were exercising a "quintessential exercise of regulatory power." For Kelly, realigning the lanes. For Trump, his Article II powers over foreign affairs.
But that realignment was a quintessential exercise of regulatory power. And this Court has already held that a scheme to alter such a regulatory choice is not one to appropriate the government's property. …
The analogies between the conduct are not perfect, but they work. What differs, of course, is the relevant charges. Kelly was charged with "property fraud," a special type of the all-encompassing wire fraud.
The Government in this case needed to prove property fraud. The federal wire fraud statute makes it a crime to effect (with use of the wires) "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." 18 U. S. C. §1343. Construing that disjunctive language as a unitary whole, this Court has held that "the money-or- property requirement of the latter phrase" also limits the former. McNally v. United States, 483 U. S. 350, 358 (1987). The wire fraud statute thus prohibits only deceptive"schemes to deprive [the victim of] money or property."
Justice Kagan did seem aware of the trial going on across the street at the Capitol. At several junctures, she referred to "abuse of power"–the gravamen of the second article of impeachment. Why did she discuss this issue that was not at all relevant to a property fraud prosecution? Who knows for sure. But she did draw a distinction between property-based fraud and the more nebulous abuse of power.
Consider this passage:
To borrow Cleveland's words, Baroni and Kelly exercised the regulatory rights of "allocation, exclusion, and control"—deciding that drivers from Fort Lee should get two fewer lanes while drivers from nearby highways should get two more. They did so, according to all the Government's evidence, for bad reasons; and they did so by resorting to lies. But still, what they did was alter a regulatory decision about the toll plaza's use—in effect, about which drivers had a "license" to use which lanes. And under Cleveland, that run-of-the mine exercise of regulatory power cannot count as the taking of property.
Here, she suggests that lawful actions, take with a corrupt motive, would not be property fraud. But it could be something else? She writes in the Intro:
The question presented is whether the defendants committed property fraud. 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 Government contends it was, because the officials sought both to "commandeer" the Bridge's accesslanes and to divert the wage labor of the Port Authority employees used in that effort. Tr. of Oral Arg. 58. We disagree. The realignment of the toll lanes was an exercise of regulatory power—something this Court has already held fails to meet the statutes' property requirement. And the employees' labor was just the incidental cost of that regulation, rather than itself an object of the officials' scheme. We therefore reverse the convictions.
My friend Yaakov Roth, who argued this case, specifically parried property fraud with abuse of power. He argued:
What we have here is an abuse of power, a political abuse of power, and—and that's—if anything, again, that sounds in honest services fraud, which this Court has limited, due to vagueness concerns, to bribes and kickbacks.
And Kagan quoted that line:
As Kelly's own lawyer acknowledged, this case involves an "abuse of power." Tr. of Oral Arg. 19. For no reason other than political payback, Baroni and Kelly used deception to reduce Fort Lee's access lanes to the George Washington Bridge—and thereby jeopardized the safety of the town's residents.
And what is the remedy for a "abuse of power." Kagan writes:
The upshot is that federal fraud law leaves much public corruption to the States (or their electorates) to rectify.
In other words, let the voters decide.
Jonathan Turley also drew some parallels between Kelly and the impeachment trial. I agree with his conclusion:
Similar arguments were made by experts that Trump clearly could be charged with wire or mail fraud for controversies ranging from the Trump Tower allegations to the Ukrainian allegations.
None of this matters. The media is unlikely to note that these theories were proven not just wrong but rejected unanimously by the Court.
BTW, kudos to my friend Yaakov for winning his first Supreme Court case, 9-0, against the federal government. With a pithy Kagan opinion no less! I'll read this Trump tweet as a thank you note.
Congratulations to former Governor of New Jersey, Chris Christie, and all others involved, on a complete and total exoneration (with a 9-0 vote by the U.S. Supreme Court) on the Obama DOJ Scam referred to as "Bridgegate." The Democrats….
— Donald J. Trump (@realDonaldTrump) May 7, 2020
Update: In response to co-blogger Ilya Somin's post, I do not think Kelly vindicated Trump, at all. At most, it cast doubt on a property-fraud theory article of impeachment. Justice Kagan, quite deliberately, distinguished this ground from "abuse of power." I agree with Ilya, and have for months, that an "abuse of power" need not be liked to any specific statutory offense.