The Supreme Court’s 2016 decision in United States v. McDonnell raised questions about the constitutionality of expansive interpretations of federal bribery statutes.  However, the bribery statute at issue in McDonnell—quid pro quo corruption defined at 18 U.S.C. § 201(a)(2)—is not the only bribery statute in federal prosecutors’ toolbox.  Since McDonnell was decided, federal prosecutors have increasingly relied on 18 U.S.C. § 666 to pursue bribery charges that might otherwise be precluded by McDonnell’s holding.
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The Supreme Court recently granted certiorari in a criminal case arising from a fraudulent scheme to cause massive gridlock at the George Washington Bridge in September 2013—otherwise known as the “Bridgegate” scandal. Bridget Anne Kelly, a staffer in then-Governor Chris Christie’s office, was convicted of wire fraud for her role in fabricating a fake traffic study and orchestrating lane reallocations as an act of political retaliation against a local mayor.

Affirming Kelly’s wire fraud conviction, the Third Circuit sustained the Government’s theory that Kelly and a fellow political operative fraudulently deprived the Port Authority of both physical property and intangible property, finding that the Port Authority has an “unquestionable” property interest in the Bridge’s traffic allocation and its public employee labor, and that the Port Authority has an intangible property interest in the public employees’ time and wages.
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On June 21, 2018, the Supreme Court issued its highly anticipated opinion in Lucia v. SEC, finding that the manner in which the U.S. Securities and Exchange Commission (SEC) selects its “in-house” administrative law judges (ALJs) violates the Appointments Clause of the Constitution.  In a 7-2 decision, the Court held that ALJs are “inferior officers” and must be appointed by the president or head of the agency, rather than hired by SEC staff through the civil service process.  The immediate practical impact of the decision requires that petitioner Raymond Lucia be afforded a new hearing before “a properly appointed official.”

In recent years, capitalizing on what some commentators considered a “home court advantage” for enforcement actions, the SEC began favoring administrative proceedings in which agency ALJs serve as adjudicators rather than judicial proceedings in federal court.  An ALJ assigned to hear an SEC enforcement action has the power to issue an initial decision containing factual findings, legal conclusions, and appropriate remedies.  The Commission is not required to review the ALJs decision, and if it declines to review, the ALJs “initial” decision is deemed a final action of the Commission.  In practice, most ALJ initial decisions become final without any Commission review; for example, 2016 data revealed that 90% of SEC ALJ initial decisions were not reviewed by the Commission. 
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