NICK EICHER, HOST: It’s Monday morning, Martin Luther King Day, and another work week for The World and Everything in It. Today is the 20th of January, 2020. Pretty cool. 1-20-20-20.
Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard.
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EICHER: We hired a really strong agency to come up with a fresh look. The magazine team worked hard, and worked over the holidays to get this delivered on time. We’re really excited about it.
REICHARD: Yes, I noticed the type’s bigger and we’re using more white space, so it’s more readable.
EICHER: Right, and we’re investing in more photography and art, and it’s just a beautiful, bold new look—and it frames up our rigorous, street-level journalism and makes it shine. And, yes, we’re eager to get it in front of more people.
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REICHARD: Well, as you mentioned, it is Martin Luther King Day and the U.S. Supreme Court is closed today in observance of it. The justices resume hearing arguments tomorrow.
Today, we’ll start with analysis of oral argument in a case from 2013—a big political scandal, Bridgegate, that damaged New Jersey’s Republican governor Chris Christie. It was all over the news.
AUDIO: Port Authority cops moved the cones September 9th…three local access lanes which connect to the George Washington Bridge that connects New York and New Jersey were reduced to one…traffic and motorists snarled for hours…I got caught in it there for three hours. Are you kidding?…people in your communities who sit in longer traffic everyday…hours long traffic jams in the streets of Fort Lee…anytime you say Bridgegate it hurts Chris Christie…[Springsteen music]: I’m stuck in Gov Chris Christie’s little Jersey traffic jam… I’m embarrassed and humiliated by the conduct of some of the people on my team. I come out here today to apologize to the people of New Jersey.
EICHER: The Fort Lee traffic jam lasted four days. The political fallout much longer: an investigation into the lane closures uncovered as one legal brief put it: “bareknuckle New Jersey politics.”
REICHARD: Three officials schemed to shut down access lanes to punish the Democratic mayor of Fort Lee. He’d not endorsed Governor Christie for re-election.
The three concocted a cover story that quickly unraveled when smoking gun emails revealed the truth.
One of the three pleaded guilty to fraud and conspiracy. He then became witness against the other two; Bridget Anne Kelly, an aide to Governor Christie, and William Baroni, who worked for the Port Authority that oversees bridges and tunnels in the area.
EICHER: A jury convicted Kelly and Baroni on all counts, including federal property fraud.
Most of those were upheld on appeal. They then appealed to the U.S. Supreme Court.
Kelly’s lawyer, Jacob Roth, argued his client’s conviction for property fraud makes no sense. She got no personal benefit from shutting down traffic lanes.
ROTH: This theory turns the integrity of every official action at every level of government into a potential federal fraud investigation.
REICHARD: Roth argued the government is casting too broad a net over all kinds of behavior to nab them under federal laws that just don’t fit the crime.
ROTH: I’m not trying to suggest that this is okay. We don’t want public officials acting for personal reasons. We don’t want them acting necessarily for partisan or political reasons. But what I’m saying is the remedy for that is not the federal property fraud statutes.
The three officials either got fired or gave in to pressure to resign. And other remedies for elected officials doing similar things includes simply, as the saying goes, throw the bums out of office.
Besides, trying to divine someone’s motives is fraught. Roth thought of the police chief who says a crime wave is on the way, so he needs more officers. But his true motivation is to curry favor with the police union.
Unsavory maybe, but not property fraud.
Baroni’s lawyer warned that contorting federal property fraud law like this is just plain dangerous in these hyper-partisan times.
But the lawyer for the government, Eric Feigin, argued the lane closure scheme does fit within federal property fraud. Commandeering lanes, allocating workers to install traffic cones, hiring another toll booth operator—that’s money. And money is property. Connect those dots.
But Justice Stephen Breyer saw the potential for abuse in that theory.
BREYER: My goodness, the Code of Federal Regulations, the rules of any department, the—I mean, the government is filled with rules. And there are numerous instances where a person might say something untrue about something related to a rule that gives him authority for that.
Echoing the “this is too broad a net” argument of the petitioners.
And Justice Elena Kagan also seemed to think the law under which they were convicted didn’t fit the crimes.
KAGAN: The statute clearly says that a scheme—the object of it, has to be to obtain property… If I look at this and I’m an ordinary juror, you know, I’m thinking the object of this deception was not to obtain property. The object was to create a traffic jam. The object was to benefit people politically.
The Supreme Court has looked for ways to rein in the power of federal prosecutors in recent years. Prosecutors have wide discretion in whom to charge and with what provision of law. It’s the difference between justice and injustice. One judge called the overzealous prosecutions problem is of “epidemic proportions.”
My guess is the court will find in favor of the petitioners, Kelly and Baroni, but write the opinion carefully so as not to put the court’s imprimatur on political shenanigans.
This next case is about patents and time limits. I’ll keep it short because it’s pretty technical. The question is whether the courts should review disputes over the timeliness of patent matters. That’s primarily the job of the Patent Trial and Appeal Board to decide.
Justice Ruth Bader Ginsburg seemed reluctant:
GINSBURG: There’s something unseemly about nullifying the determination on the merits.
But Justice Neil Gorsuch underscored the importance of a day in court, even in technical matters.
GORSUCH: You agree with the government in the last case that it’s based on separation of powers and it is designed to ensure people that they’re not subject to whimsical executive decisions?
CHARNES: Well, in—in general terms, yes.
This case may be technical, but the decision could limit what matters the federal circuit courts can review. So it’s still important.
OK, two more cases to go.
This next case is an odd sort of dispute over procedural matters.
A native of Colombia came to the United States legally in 1986. But 12 years later, Pedros Guerrero-Lasprilla’s felony drug convictions resulted in his removal from the country.
Eighteen years after that, he sought to reopen his case, but an immigration judge thought he hadn’t pursued his rights diligently enough and waited too long to do it.
The question revolves around the phrase “questions of law.” Guerrero-Lasprilla wants the court of appeals to look at his case, but those courts can only consider questions of law by aliens with certain kinds of convictions.
So is his case about those kinds of law, or is his case about facts? Or is his case a mix of both law and fact? Is being on time more about a fact or more about a law?
Argument morphed into the concept of judicial review over agency action. And Justice Stephen Breyer sounded positively grounded in a basic doctrine of American life:
BREYER: I have always thought that it is really basic. It is the presumption that assures every person in the United States of America that this government will not harm that person in ways that are unlawful, unfair, arbitrary, capricious, unconstitutional, or an abuse of discretion, and that if you want to have a country that has a government that is under control, there is no better way. I’m not saying judges are perfect, but that separation of powers is designed to provide a check.
Congressional intent should govern here, says one side, and that doesn’t permit appellate court review of questions involving mixed questions of both law and fact. Only questions of pure law.
The justices will have to balance the need to review terrible agency decisions against voiding congressional intent.
This last case deals with legal procedure that may be familiar to you. Surely you’ve seen TV courtroom dramas in which a lawyer cries out, “objection,” when he thinks the other side’s lawyer violated a rule? That’s really important for many reasons. But one of them is to correct in the moment what a jury should or should not consider during deliberations.
Another kind of objection lawyers need make is after sentencing, say to the length of a prison term. Circuits differ on this, but in the 5th Circuit where this particular case arose, it’s required to preserve the right to appeal an issue. The appellate court must see that the lower court has on its record a lawyer’s dramatic, “objection!”
Here, a criminal defendant’s lawyer didn’t formally object to the prison sentence that he thought was too long. So the 5th Circuit couldn’t review the reasonableness of the prison term.
But the criminal defendant says it’s so obvious he’d want a shorter term, a formal objection is unnecessary.
Now, the Supreme Court had to appoint a lawyer to argue in favor of keeping the formal objection rule. That’s because the government wouldn’t stand for the judgment that it sought below. So that appointed “amicus curiae,” as it’s called, made a valiant effort to argue in favor of the rule.
And the chief justice acknowledged the hard job it was in this comment to lawyer Winn Allen:
ROBERTS: Mr. Allen, this court appointed you to brief and argue this case as an amicus curiae in support of the judgment below. You have ably discharged that responsibility, for which we are grateful. The case is submitted.
A criminal defendants’ ability to appeal this matter is dependent on where he or she happens to live. Not a good thing.
So I think the justices will rule in favor of the man, but do so narrowly so as not to capture factual situations in thousands of other criminal matters that would do more harm than good.
And as for the chief justice, he’ll have an unusually busy week: court business in the mornings, and presiding over the impeachment proceedings of President Trump in the Senate in the afternoons. If he has to miss oral argument, the next senior justice will preside over the court.
And that would be Justice Clarence Thomas.
And that’s this week’s Legal Docket.