The Supreme Court today unanimously threw out the convictions of Bridget Kelly, a former aide to Christie, and Bill Baroni, a former Port Authority official, for their role in “Bridgegate.” The dispute involved the controversial closing of lanes on the George Washington Bridge to create traffic problems for the mayor of Fort Lee, N.J., who had refused to endorse Christie. Notably, the Court rejected the very arguments raised by some experts against Trump and relied on some of the same analysis that I raised in my testimony in the Trump impeachment against such claims.
Justice Elena Kagan wrote in the court’s opinion on “the question presented [of] whether the defendants committed property fraud.” She found “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 Court observed:
“That requirement, this Court has made clear, prevents these statutes from criminalizing all acts of dishonesty by state and local officials. Some decades ago, courts of appeals often construed the federal fraud laws to “proscribe schemes to defraud citizens of their intangible rights to honest and impartial government.” McNally, 483 U. S., at 355. This Court declined to go along. The fraud statutes, we held in McNally, were “limited in scope to the protection of property rights.” Id., at 360. They did not authorize federal prosecutors to “set standards of disclosure and good government for local and state officials.” Ibid.”
That is the argument that I raised in the impeachment against the proposed articles of impeachment — supported by a host of experts on MSNBC and CNN as well as Democratic members — that the Ukrainian allegations could be charged as mail and wire fraud as well as crimes like extortion.
For example, on the Hobbs Act I noted:
“Blackstone described a broad definition of extortion in early English law as “an abuse of public, justice which consists in an officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due him, or more than is due, or before it is due.” The use of anything “of value” today would be instantly rejected. Extortion cases involve tangible property, not possible political advantage.90 In this case, Trump asked for cooperation with the Justice Department in its investigation into the origins of the FBI investigation on the 2016 election. As noted before, that would make a poor basis for any criminal or impeachment theory. The Biden investigation may have tangible political benefits, but it is not a form of property. Indeed, Trump did not know when such an investigation would be completed or what it might find. Thus, the request was for an investigation that might not even benefit Trump.”
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. The shared element is the treatment of political advantage as a thing of value (or akin to property) to support claims under the Hobbs Act, extortion provisions, wire and wire fraud provisions, election fraud provisions and other criminal provisions.
None of this matters. The media is unlikely to note that these theories were proven not just wrong but rejected unanimously by the Court. The experts have just moved on to new exaggerated or opportunistic claims under the criminal code. There remains a detachment in coverage from the criminal code. The media remains a bottomless pit for such theories so long as they suggest that Trump or his associates could be criminally charged or impeached. What is most striking is that such rulings receive no coverage in what they say about prior discredited theories. Legal analysis seems entirely untethered to legal authority in this age of rage.
Here is the opinion: Kelly v. United States
Update: I note that a column at Volokh Conspiracy by Ilya Somin disagrees with my view as well as Josh Blackman’s view under the title No The Supreme Court’s “Bridgegate” Decision Doesn’t Vindicate Trump on Impeachment. The problem is that Somin does not address my specific point and I did not say that the case alone vindicated Trump on impeachment. What I argued was that the case contradicted a critical argument used by experts to allege criminal acts as well as some impeachable offenses. I argued in the impeachment that criminal allegations raised by various experts sought to treat political advantage as a thing of value while courts had been consistent in adopting more narrow views of property, as the Supreme Court just did.
Indeed Somin simply repeated argued that impeachment is not a criminal proceeding, a common mantra during the impeachment. As I testified, impeachment have historically looked to the criminal code and case law:
“While all three acts in the impeachment standard refer to criminal acts in modern parlance, it is clear that “high crimes and misdemeanors” can encompass non-criminal conduct. It is also true that Congress has always looked to the criminal code in the fashioning of articles of impeachment. The reason is obvious. Criminal allegations not only represent the most serious forms of conduct under our laws, but they also offer an objective source for measuring and proving such conduct. We have never had a presidential impeachment proceed solely or primarily on an abuse of power allegation, though such allegations have been raised in the context of violations of federal or criminal law.”
In that testimony I opposed the position of my fellow witnesses that the definition of actual crimes is immaterial to their use as the basis for impeachment — and I specifically opposed impeachment articles based on bribery, extortion, campaign finance violations or obstruction of justice. The committee ultimately rejected those articles and adopted the only two articles I felt could be legitimately advanced: abuse of power, obstruction of Congress. Chairman Jerrold Nadler even ended the hearing by quoting my position on abuse of power. Our only disagreement was that I opposed impeachment on this record as incomplete and insufficient for submission to the Senate.
Now back to this posting referenced by Somin, the connection to the impeachment is that the Supreme Court has reaffirmed the narrow interpretation of the common element of the benefit sought from fraud or extortion or other crimes. It is easy to say that “all is fair in war and impeachments” but Congress has never adopted such a cavalier approach. Indeed, while dismissing that actual legal definitions and interpretations are controlling, the Democrats and their witnesses repeatedly tried to defend the proposed (and largely rejected) articles of impeachment by referring to such case law at various points in the hearing. It is easy to just end such legal arguments by asserting “impeachment can be justified even in cases of abuse of power where no specific law has been violated.” Legal definitions and case law have always been the touchstone of impeachments precisely to avoid an “everything goes” approach. Thus, while I testified such cases were not controlling (and I testified that abuse of power could be a viable impeachment article if proven against Trump), I strongly argued against the effort to decouple such legal authority from the impeachment analysis.
Finally, as I noted earlier, my point is not that this one case “vindicates” Trump. It vindicates the argument on this one, albeit important, element in the analysis used by experts to claim criminal acts by Trump. Experts have engaged in sweeping and poorly supported arguments that criminal acts were established by various investigations, including but not limited to the impeachment hearing. The linchpin is often a broad interpretation of this element that has, once again, been given a narrow interpretation by the Court.