The Court unanimously held that these actions were not criminal under federal law, because the officials did not obtain any money or property when they realigned the toll lanes. All they did, the Court observed, was exercise their governmental authority for corrupt and fraudulent reasons. Although the officials used government employees’ time and money to carry out the realignment scheme, that time and money was not the purpose of the scheme. What the officials really wanted was to use government power for partisan aims—to make life harder for the constituents of their political opponent. And that, the Court concluded, is not a federal crime.
The Court’s willingness to permit public officials to get away with concededly corrupt acts is nothing new. The Court previously‚ and unanimously‚ vacated the conviction of the former governor of Virginia, who gave out access to meetings in exchange for political donations. There, too, the Court accepted that that is just how government works: Even though the acts were “distasteful,” the Court expressed that the prosecution “could cast a pall of potential prosecution over” much of how the Court thought government works—namely, doling out access for political favors.
These decisions unanimously concluded that federal criminal law does not currently prohibit the defendants’ conduct. So could Congress pass a law criminalizing this sort of behavior? That’s not clear—the Court doesn’t seem to like that idea either. In the case involving the Virginia governor, for example, the Court intimated that there were “significant constitutional concerns” with the federal government’s attempt to prosecute a government official for taking a bribe, which the Court viewed as ordinary, if untoward, government conduct.
Such statements are not mere abstractions. The Court’s conservatives have invalidated several statutes that were designed to combat public corruption, on the grounds that money in politics is not only how government works, but perhaps even enshrined in the Constitution. Citizens United v. Federal Election Commission invalidated the federal limits on corporate campaign expenditures. The federal government argued that the limits were necessary to reduce quid pro quo corruption and the appearance of corruption; the majority dismissed the idea that large campaign expenditures gave rise to the appearance of corruption. In a subsequent decision, McCutcheon v. FEC, the Court struck down related aggregate limits on campaign contributions that were designed to prevent the superrich from purchasing political favors, among other things.
Garrett Epps: The Supreme Court has chosen reckless partisanship
Part of what is striking about the Court’s decision in the Bridgegate scandal is that it comes at a moment of very public government corruption that jeopardizes Americans’ health and safety during a dangerous pandemic. Take the press conference where the president claimed that he had instructed Vice President Mike Pence not to return the calls of unappreciative governors. Or when he claimed to send ventilators to Colorado because of Republican Senator Cory Gardner, who is up for a tough reelection fight this year. The Democratic governor of Michigan, Gretchen Whitmer, has alleged that the federal government has encouraged businesses not to provide any support to the state. The president and Senator Mitch McConnell have openly acknowledged that their views on coronavirus-relief packages are based on whether the states in need happen to be led by Democrats or Republicans. And the Department of Justice now refuses to prosecute the president’s formal national security adviser for lying to the federal government and secretly working for a foreign government.