The federal traffic-jam prosecution of two former officials in New Jersey Governor Chris Christie’s administration begins this week. The officials reduced access for one week to the George Washington Bridge from Fort Lee, New Jersey, to New York as political payback against the mayor of Fort Lee for not supporting their boss in his re-election effort. Yet the criminal charges levied by Justice Department prosecutors tell a more serious story, alleging fraud and deprivation of civil rights.
Because the allegations look, swim, and honk like wild geese, one might think that a court would cut the prosecutors’ chase short by tossing the case out of court. Not so. Courts often let a wild goose chase unfold—as they have in this case, after denying defendants’ motion to dismiss—rather than spare the defendants, the taxpaying public, and the credibility of the criminal justice system the ordeal of a meritless criminal trial.
This prosecution illustrates serious problems in federal criminal law. Attorney James M. Burnham has described a major one: “overbroad, vague federal criminal laws that ensnare unwary defendants and perplex the lawyers who defend them.” The officials standing trial did not steal the George Washington Bridge, they did not purloin government funds, and they did not violate anyone’s constitutional rights. Yet prosecutors have managed to transform low-class politicking into a 37-page, 9-count indictment that includes allegations of theft of federal government property, fraud, and the deprivation of the civil rights of New Jersey residents, as well as conspiracy to do all of the foregoing.
As Burnham put it, “the government has a long track record of pursuing aggressive, questionable legal theories that would present large targets for motions to dismiss.” The GW Bridge prosecution should be Exhibit A. Prosecutors go on for pages about New Jersey officials’ decision to close down a lane of traffic, but don’t meaningfully articulate what the officials did to commit fraud. Nor do they convey any civil rights violations, because there simply is no constitutional right to avoid traffic.
A judge can dismiss an indictment under Federal Rule of Criminal Procedure 12(b)(3)(B)(v) if it is so inadequate as to fail to state an offense. That rule could function like its civil counterpart, but in practice it does not. Courts routinely dismiss non-meritorious civil lawsuits when prompted by a motion from a litigant. As one recent example, a class action lawsuit against Starbucks in California alleged “fraud, false advertising and breach of warranty” based on the theory that the coffee giant was “misrepresenting the specific number of ounces in an iced drink.” A “‘Grande’ iced coffee or tea,” according to plaintiffs, “which is 16 ounces, actually contains 12 ounces of coffee plus 4 ounces of ice,” and, as their theory went, that defrauded customers. A judge dismissed their claims with prejudice (telling plaintiffs, don’t just get out of my courtroom, get out and stay out!).
Results like that one should not be surprising. The Supreme Court twice directed federal trial judges to weed out facially insubstantial cases—once in the Twombly case, twice in the Iqbal case. Courts should follow that approach in equally insubstantial criminal cases, like the GW bridge case. Congress could even allow defendants to ask the district court to certify a pretrial appeal of its refusal to dismiss an indictment, which the court might grant in close cases. That would allow the court of appeals to weigh in as to whether an indictment actually states an offense.
The George Washington bridge defendants did file a motion to dismiss the charges against them, which gave the district court an opportunity to corral an overzealous prosecution. The judge denied that motion, however, and it isn’t too hard to see why. If the government does not establish a prima facie case of guilt in its case-in-chief, the district court can dismiss the indictment. If the case goes to the jury, and it acquits the defendants, the case will be over. The district court therefore may simply have been hoping that the prosecution will fall short in its proof or that the jury will spare the court the need to dismiss the case.
The problem with that approach, however, is that it drags an innocent party through the expense, anxiety, and muck of a criminal trial before justice is done. That is bad enough even without considering the hours wasted by lawyers, judges, and juries on a case that should have been dismissed at the outset.
That cost is unnecessary in this case. The defendants’ alleged conduct was stupid, but not criminal. They have already been tried by the media in the court of public opinion, and they already have been punished via social and political sanctions. Christie fired Bridget Kelly, and Bill Baroni and David Wildstein resigned in disgrace. To be sure, Christie won re-election prior to the scandal, but shortly thereafter, there was talk of impeachment. The incident doubtless plagued his bid for the Oval Office, and it will resurface if he ever seeks another political position.
Political and social sanctions are just deserts for public servants who do something bad enough that we want them out of office but not so awful that we want them in jail. The United States Supreme Court expressed that preference just last term in McDonnell v. United States. Former Virginia Governor Robert McDonnell was convicted for what he contended were vague corruption charges, and the Supreme Court unanimously vacated his conviction. Far from “legalizing corruption,” the Court took the case for what it was, an attempt by the Justice Department to criminalize politics by billowing out vague theories of criminal liability. After the Supreme Court decision, the U.S. Attorney recommended that McDonnell be thrown back into the arena a second time, but cooler heads prevailed at the Justice Department, which dismissed the case. Perhaps those same cooler heads should not wait so long before following that approach here.
