Supreme Court Tosses Out ’Bridgegate’ Convictions

overturn the convictions? So what's happened here is the existing federal statute that the Justice Fartment has been trying to rely upon, such as wire fraud and federal bribery, never really envisioned being applied in a situation where there was no money at issue. So we're like, what happened here similar to what we had a couple of years ago with McDonald case that came out of Virginia. Was the particular corrupt actions which everyone, even though all the justices

agreed were rup they were brazenly political. Complete retaliation didn't fall within the scope of this type of federal statute. They wire fraud statute required more than justice fraudulent use of authority, but that it would be done for the purpose of obtaining money or property. And the reason that the justices overruled the convictions here was because despite what actually happened, despite the admission that this was retaliation, it was fraud. They didn't do it in order to obtain

money themselves. They were just engaging in political retaliation. And these federal statutes don't contemplate serving as sort of a roving federal anti corruption statute. That's not what they do. So is it because the government had a sort of tortured view of what government property consisted of. But that

was part of it. And so what the government tried to claim was that because in order to cover up their actions, the steps taken by the two criminal defendants had been to utilize government resources to create a phony, you know, story about a travel study, to pay off a toll worker, to close lanes. Because they had used funds in that way, with implicating a federally funded program, the Port Authority, that was sufficient to meet the statute.

But what the justices concluded was because these two individuals weren't doing it to get money for themselves that took it outside the scope of the wire fraud statute. So, as you mentioned, this is not the first time the Supreme Court has reversed a case when there's a prosecution for public corruption. Is there something about these prosecutions that

the court finds wanting. It's not so much wanting from the facts so much as that the existing legal uh provisions that are being relied upon by d o j. The Supreme Court has included doesn't reach this far. So there isn't, by you know, in law, any kind of broad, overarching anti corruption statute that applies to the official acts

of state officials. There's state laws that apply to that, and there may have been an argument that there should have been a state criminal business opposed to a federal one, but the federal government hasn't ever imposed such a law on state officials. And there'd be obvious questions, you know, in terms of Article ten of the Constitution, whether or not that would violate the separation of powers between the federal government and the state if the federal government could

impose a broad anti corruption statute against state officials. So that's the thing why they haven't done that in the past. And probably why they won't even do that going forward. But it does speak to whether or not the existing statutes have been tried to be use, such as the you know, the bribery statutes, whether or not they'd be clarified or updated going forward, given how these state officials have been sort of exploiting these loopholes. Let's go back

for a second to the McDonald case. Sort of a shocking decision to most people. Yeah, and in that one, so that was the in that case, with the federal bribery statute that was to play, and there was things a value of personal money received, so that element that long of the issue was resolved and the government could

prove its case. But what they struggled with there and why the justices overturned the conviction in that case, was there was no actual official act by Governor McDonald that the simple actions of taking a meeting or recommending someone talk with the private company wasn't sufficient to implicate the

official act by a state official. And again we're getting into the nitty gritty weeds of what doesn't does does not qualify as official state action, what doesn't doesn't qualify as a fraudulent effort to obtain personal moneys or property.

But this is where the vagaries of the law have come down to and where we're still fleshing out, you know, at this point, and even with the Supreme Court cases these two in the last five years of exactly how far state officials can, you know, push the boundaries and exercise their power. So finally, will this have a chilling effect on federal prosecutors. I think there'll be a little bit more gun shy in terms of how they approached

some of these cases. I think there was certainly an effort to crack down some of the corruption that they thought was not being properly addressed. I think they were legitimate and good, good faith purposes behind both prosecutions. I mean, certainly what Governor McDonald did here in Virginia a few years back, and then what these two individuals did in New Jersey back was discussing it was unethical, um and

it was brazenly politically corrupt. But it raises a question about how much the federal government is allowed to venture into this from a criminal standpoint, given our state government officials and not the federal government officials. Okay, thanks brad, that's Bradley mass apartment. Mark Zade coming up next on Bloomberg Law, a controversial Trump nominee to the second highest court in the land, gets a confirmation hearing with social

distancing MH. The Senate Judiciary Committee became one of the first Congressional panels to embrace new procedures to work during the coronavirus pandemic. The committee heard testimony from President Trump's controversial pick for the d C Circuit Court of Appeals, Judge Justin Walker, joining me as Madison Alder Bloomberg Law reporter. So was it a teleconference, Maddie, a video conference? How did it work? It was a little bit of both.

So the Senate Judiciary Committee was one of the first committees on the Hill to to try, uh, to adapt to the coronavirus pandemic. And the way they chose to do that was to use the larger hearing room than they typically do. So they had lawmakers who were there in person, spread out among two levels of desks. They had at least six feet of separation between them. And then they had a few lawmakers who were present via

video conference. Uh, So they showed up on a video screen, and then the nominee himself was there and would addressed their questions on that on that video. It's great and so um they're just in the pandemic just like everyone else. Were there any uh hiccups, any problems. It was a little difficult to hear a few of the speakers. Um, when Senator Patrick lay he came on, his voice was very booming. He sounded a bit like the Wizard of

oz Um. And then later on Senator Marsha Blackburn, she came on and we couldn't hear her audio for a second. But despite those those couple of hiccups, it went pretty smoothly. I think, you know, it kind of fits with the theme we've seen with a lot of these government institutions that are switching over to some kind of adapted version of their proceedings, like the Supreme Court, where despite a few minor hiccups, that seems to be working pretty well.

The Democrats had an objection to even holding this hearing because they're holding this hearing before Judge Griffith, whom Walker is supposed to replace, is even scheduled to step aside, that's in September. I have this hearing that that's correct. So Democrats for a prose to the idea of this hearing. Last week they sent a letter to Senator Graham one

word of this hearing came out. They said that they should be focusing on issues within the Senatejuciary Committee jurisdiction that are related to the coronavirus pandemic, rather than a nominee who won't be filling this seat until September when Judge brought this step down. But the Senate Judiciary Committee McConnell has said that this is going to be a priority for the Senate, and the Senate Judiciary Committee is

moving along without work. Republicans are saying that that judges are a part of the essential work of the Senate. Um Senator John Cornyn yesterday I reiterated that and said, you know, this is one of the things that the Senate should be doing during this time. So that was

definitely a consistent conversation throughout the hearing. In addition to questioning the nominee himself, we kind of had this side debate of whether or not they should be focusing on this versus, you know, other things that the committee could be doing now. Walker is a protege of Majority Leader Mitch McConnell, who has been leading the Bush to fill the judiciary with conservatives. Tell us a little more about him. So,

Justine Walker. He is currently a judge on the Western District of Kentucky thirty seven, which is fairly young for an Afield Court nominee. He is a protege of Mitch McConnell. Mitch McConnell has really championed his nomination for the DC Circuit. Walker was first nominated to his trial court seat by Trump UH and confirmed just six months ago, so this

is a pretty quick elevation to the DC Circuit. There was a bit of controversy over his last nomination because the American Bar Association, which does ratings for judicial nominees, rating him not qualified, which is he was one of the handful of nominees that Trump has had who has been rated not qualified, and that was that largely characterized demo. Perhaps concerns in the last hearing, a lot of their

comments were about his qualifications in his background. This time around, however, the night before his hearing, the A B A gave him a well qualified rating, which is their highest rating. So why did the A B A change it's rating on him? He's only been a judge for six months. The ADA says they changed their rating because they were

looking through different lens for this for this position. Um. Yeah, I talked to a few people who follow this process and they said that the DC circuit had has different types of cases than a trial court would, and also circuit courts have different types of cases and trial court would. So that could be part of why they changed their their decision here is that you know, as a trial court judge there are different um types of skills and responsibilities that you need to um have and and attend

to then you do as an appeals court judge. So those are the factors that could be contributing to why they ultimately changed the rating. Did anyone talk about the fact that he just became a district court judge not six months ago. Yeah, I mean, it wasn't lost on members of the committee. McConnell even made reference to that when he gave remarks on the Senate floor yesterday during

the hearing um. It is somewhat of a quick elevation, but this has happened in you know, in the past and in other administrations where someone is appointed to a lower court and is elevated to UM an appeal court. Is Walker leap frogging over other candidates who were in line. Yeah, so that is something else that was brought up at the hearing yesterday. Walker was nominated amid the pandemic um.

Trump had two nominees for the appeals court seats that he has left to still as a seat on the fifth Circuit and as this seat on on the DC Circuit. The fifth Circuit seat is actually vacant right now, and it has been for quite some time. It's considered a judicial emergency, which is a term given to seats that kind of put a lot more pressure on the remaining judges they have a higher workload. Uh, So that seat

is still vacant. Um. The nominee for that seat, Corey Wilson, was nominated before Walker, so he's leap frogging another appeals court nominee, and then of course he is leapfrogging other district court picks who are in the pipeline. There's about um forties four nominees currently in the pipeline. Uh. Some of those have yet to have a hearing, So there are a number of those nominees that that could also

have a hearing soon. So is there any explanation from the committee chair or from McConnell as to why they're not dealing with the vacant seat first? What is the urgency of this? There hasn't been very much, uh in terms of addressing why Walker's nomination was put first. But if we look at the numbers and the past history of the Judiciary Committee, UM and Trump and and Senator McConnell, is that we see that they do prioritize Appeals Court

nominees over other nominees. Um. There's been some you know, data that shows that those nominies move quicker through the process than than other nominees. So, um, you know, it could that is the contributing factor that the d C Circuit is is known as the second highest court in the land. It's a very important court. And you know, I'm sure McConnell will like to get his his pick into that seat as quickly as possible. Now, Democrats are

concerned about Walker's writings and remarks on Obamacare. Tell us about their concerns. So Walker has made a few comments over the past few years about the A c. A. The first one was in an article defending Kavanaugh's nomination to the Supreme Court. He was a former Kavanaugh clerk. When Kavanat was on the DC Circuit. He also clerked

for this Anthony Kennedy. UH. And in that article he basically said that the Supreme Court decision in n f I B Versus Civilius, which is the decision that upheld the individual mandate of the A C. A. He said that that was indefensible and that was something that Democrats took issue with. UM kind of in the context of the pandemic. A few of them asked why they should advance a judge who was seemingly opposed to this law, UH,

during the time of a pandemic. Another comment he made was that his investor in march um it was a bit of a joke. At the end of a description of his relationship with his former boss, Anthony Kennedy, he he made a remark that UH kind of poked fund at the A C A UH and that particular decision again, and Democrats also took took a shoet with that. But you know, he said that in the article that he wrote, UM,

he was really trying to do a legal analysis. And then he also said that you know, it really was a joke, and he does, you know, respect Kennedy and the Court. And I believe that not only Mitch McConnell but Justice Kavanaugh were at his investiture ceremonies. That's correct. Um, this was actually in March, so was at the beginning of this pandemic. Um, McConnell and and Kavanaugh were there.

They were present when you know, he was formally added to the Western District of Kentucky, which, um, you know, brace some eyerows among Democrats. But both of those were mentors of his. Um. So it's it's not a typical to have mentors there, but um, it definitely raised some eyes, eyebrows in the opposition. What also raised some eyebrows was his recent ruling allowing Easter services to go forward in

Kentucky despite the virus. And it was controversial not only because it seemed to solve an issue that really wasn't there, but also because of its overt religious tones. Did he talk about that, That's correct. That was another thing that was brought up a lot. It was interesting at the hearing. It was brought up by law makers on both sides of the aisle. Republicans pointed to that ruling as evidence of his understanding of the law and his you know

how he would uphold the constitution. Um. But Democrats pointed to it as evidence of potential partisanship. UM. You know, said that it was it was far too off topic. UM. Another thing that came up about that particular ruling was that, um, it was made without contacting the the mayor who had put those restrictions in place himself. So UM. Some some Democrats who were questioning did bring that up as as a point um of of disagreements and Maddie, did anyone

bring up. Recently, the chief Judge of the d C Circuit, Sri Sriniva Sin, asked the Chief Justice of the United States, John Roberts to get another circuit to investigate allegations or a request by Demand Justice to look into whether Mitch McConnell influenced Judge Griffith to retire. So that's definitely in the background of all of this. That's that's kind of the contact for all of this. There have been um reports that Mitch McConnell is asking judges to retire in

that this and UM. More liberal groups like Demand Justice are taking issue with saying that it's unethical for them to do so. Um, you know, that was something that definitely was uh part of the context for for yesterday's hearing. Has that moved anywhere that request to the chief Um, not that I know of yet. The last news that I heard was that it was just going through the process and that they had opted for that that review. So does it seem as if nothing is really going

to stop Judge Walker's confirmation. Mitch McConnell has the votes as usual. You know, Walker went through last time despite his not qualified rating. Walker was confirmed and this time he has the well qualified rating. And the Senate is still led by Republicans, they still have a majority, So it does appear that his his nomination will will still be going through. But um, that doesn't mean it's not going through without a fight. As President Trump nominated other

judges recently for positions. Yes yesterday there was another nomination from the White House for the Eastern District of Virginia. And that adds to you know, the over forty nominees that I mentioned that are in the pipeline. Um, that's for about seventy nine vacancies right now, current future vacancies so you know about half those vacancies have someone in the pipeline. They're just waiting for the Senate and the

Judiciary committee. Doc. Okay, thanks Maddie. That's Madison Alder Bloomberg reporter. College students kicked off campus by the coronavirus have a new extracurricular activity, lawsuits. Undergraduates have sued more than fifty schools demanding refunds for partial tuition, room and board, and fees after the schools shut down. Joining me is Joe brannan professor at Vermont Law School who's tracking the litigation.

What types of lawsuits are the students filing. It seems that they're filing contract based lawsuits, speaking damages for both contact damages and something called restitution or on just enrichment. If it's a contract to action, do students sign anything or do colleges have posting somewhere on a website that says what tuition covers. It's kind of very based on

the institution um. Generally, schools, dur institutions will have something in offer letter that they send out the students saying that they're expecting accepting them into the program and oftentimes saying that they're bound by the terms of any academic or student regulation. To the extent that something on the website, it wand into some difficulty whether that that would actually be come part of the terms of the contract. Something like advertising generally isn't the basis of the offer or

included in the offer. So um, that's reputtable that could become part of the offer. Who was very specific and and related to the terms of the agreement, But most of the time it would just be something in an offer letter, which generally doesn't lay out specifically what tuition dollars are allocated to. And what would one just enrichment claim depend on. I'm just enrichment requires three different things.

It requires a law on the part of the plaintiffs, It requires a benefit on the part of the defendant, and it requires some connection or causation between the two of them. So that's a big difference between on justin Richmond claim and a contract claim. And a contract claim you're showing that you were hurt and you're entitled to

money or compensation. In and on justin Richmond claim, you have to claim to show that not only were you damaged, but also the other party was at the same time benefited. And so that's um the recovery that we get the amount that they were on justly benefited. So these colleges still have to pay their professors, they have some amount that they have to spend in transitioning to online courses. So they are they necessarily going to come out ahead here.

Not necessarily. Um, there are some areas where you might be more likely to get recovery than others. For instance, many schools are refunding um real plants or women boards because they're not now having to go out and buy the food to serve to the students, so they are

saving a benett from from that. But schools are still teaching the courses, they're still playing their faculty to teach the courses that students are still getting credit for it, and there may be additional costs that have been incurred to support the online transition. So absolutely correct, there's not necessarily going to be a benefit to the law school or college or university, even if there was a detriment that was suffered by the planet. So how are colleges

responding to these lawsuits? Are some of them say we're going to fight this to the bitter end or others saying well, we'll give you back this or that. I think it's early, and I think it's varied. Many schools have taken some steps to a funds. These that are directly related to specific costs, such as women board is a good example of that, or parking sees or some see that's directly related to a service that isn't being provided. It's still early and schools will have varied responses to this.

I'm not aware as any of that have issued refunds of tuition to this point. Again, this is all happening UM insence blocks right now. If this went to trial, Let's say the students are still getting the credits towards their diploma, so they're getting that much. How would a court determine what the value of an online education is versus the value of an education on campus? Right, because that would be what the damages would be if it's an on just Enrichmond claim or even a contract claim UM.

And so there's little precedent for this because what we're doing right now with the shift online education, wouldn't have been possible even UM a couple of years ago. Some case law is instructive in UM the case of Hurricane Katrina there worked on. Schools in New Orleans were not able to proceed with the campus, but other schools stepped in and let them finish out the semester at a

different institution in a different area. And there was at least one class action related to that, and of course did dismissed the um greek of contract and on Justin Richmond claims because the students still did get the credit and graduate from the ITC and that they were enrolled in just for that's the dust, or they got it

from a different area. So it is a difficult situation to evaluate exactly if there was a low benefit to the students would still be getting the same number of credits, So that would be students would have the burden is the plaintiffs to establish those damages and would have to bring in specific ways in which the online education and the in person education were preciably different, such that they're learning was not the same value as they had paid.

So lawyers are advertising on sites like college refund dot com to sign up students because they wanted to be a class action. So explain how that would work our plaintiffs. Lawyers in a rush now to be the lead plaintiffinite class action. So with class actions, you you're looking at exactly for a lead plaintiffs. You need a names plate

TIFFs as the stars who can bring the claim. And once you established that that plaint that has the premissation case that they have met the elements that a jury or fact finder could find in their favor, then you look to see, are there lots of other people who are similarly situated to be in UM a position where it's efficient to have this trial all held together and

it makes sense to do so. So yes, I think that typically when an event happens that is related to a class action, you will find law firms looking for those UM those names plaintiffs who would be a strong representative for a tutitive class to be certified at a later point. So, does this sound like it's a good case for a class action and a judge would certify these students as a class? I guess it depends how broad the class is that UM the pliantists are speaking

to name here. If you're staying within one institution that is eliminating some of the UM dissimilar mist of the claims that wouldn't it would be brought by the various plantifs um. For certain areas, I think class action could be a more natural vehicle to use, such as woman board sees. Everybody would be similarly situated with that because they would have the same contractual agreement, they would be paying the same sees, and they would not be um

making any differences in that. For some other areas, like tuition, perhaps the detriment that has been suffered by each student is varied, so there's going to be some more kurdels. I think at the class if it gets the class certification stage to certify a class on those types of plants. So if this is not certified as a class, if these are not certified as class actions, will the plaintiffs lawyers go away? Because to represent students individually would cost

so much what would the benefit be to them? That's exactly right. One of the big benefits to class actions is it allows plaintiffs to bring relatively small claims that aren't enough that it would be worthwhile for one plaintiff

to bring. It's expensive to bring litigation, and so if there's only a couple of thousand dollars, you could easily spend more in litigation fees than you would recover, and in situation like this, we would have certain upper limits on the amount that any individual student went to cover. This isn't like a court action where someone was negligent and you're going for medical expenses or pain and suffering. To my noge, nobody was alleging that anyone was negligence

or did any wrongdoing. Here, um, the Internet was caused by a global pandemic. Were argument is contract damages. So the maximum amount you could get would be the the amount you were benefited or the benefits you lost under that contract, because that would be about a quarter of the year, and even that it wouldn't be full tuition because you are getting a some value of it by getting credits and finishing pouse that term not having to take it again.

So there may be difficulties for an individual plaintiff to bring a claim which could support an argument for for for pross action. Thanks for being on Bloomberg Lade Joe. That's Joe Brennan, a professor from law school, and that's it for the edition of Bloomberg Law. I'm June Grosso. Thanks for listening and remember to tune in to the Bloomberg Law show weeknights at ten pm Eastern from Bloomberg Radio