Courthouse Steps Decision Teleforum: Kelly v. United States

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Bridget Anne Kelly and William Baroni were convicted of wire fraud, federal program fraud and conspiracy for orchestrating lane closures on the George Washington Bridge in September, 2013, as a political punishment against the mayor of Fort Lee, New Jersey for refusing to endorse the Governor re-election. On appeal, Bridget Anne Kelly v. United States was the latest in a series of political corruption cases to reach the Supreme Court. In an unanimous decision written by Justice Kagan, the Court ruled that Kelly and Baroni’s acts did not amount to defrauding the government, and reversed their convictions. 

Steve Klein, a partner at Barr & Klein PLLC and a member of the Free Speech & Election Law Executive Committee, will offer his thoughts on the implications of the ruling. 

Featuring:

Mr. Stephen R. Klein, Partner, Barr & Klein PLLC

 

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Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federal Society’s Teleforum conference call. This afternoon’s topic is titled “Courthouse Steps Decision Teleforum: Kelly v. United States.” My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the expert on today’s call.

 

Today we are fortunate to have with us Steve Klein, a partner at Bar & Klein PLLC, who is an experienced free-speech attorney and has successfully fought for First Amendment rights of his clients against local, state and federal regulators. As a lobbyist, Steve’s advocacy has led to the successful amendment of state laws to respect political engagement and prevented the enactment of laws that burden it. Steve has published articles in several legal journals and his commentary has appeared in the Wall Street Journal, The Washington Times, The Detroit News, and other outlets. Steve earned a bachelor’s degree in politics at Hillsdale College and a law degree from Ave Maria School of Law, where he served as Managing Editor of the Ave Maria Law Review. He is licensed to practice law in the District of Columbia, Illinois, and Michigan.

 

After our speaker gives his opening remarks, we will go to audience Q&A. Thank you for sharing with us today. Mr. Klein, the floor is yours.

 

Stephen R. Klein:  Thanks Greg, and thanks to everyone for having me today. Let’s set the stage. The George Washington Bridge is the busiest bridge in the world for automobiles, stretching from Fort Lee, New Jersey to Upper Manhattan. William Baroni was Deputy Executive Director of the Port Authority, a bi-state agency that manages transportation facilities in New York and New Jersey, including the G.W. David Wildstein was Baroni’s Chief of Staff and later a key witness in this case. Bridget Anne Kelly was Deputy Chief of Staff to Governor Chris Christie.

 

To quote the opinion, “She [Kelly] often worked hand-in-hand with Baroni and Wildstein to deploy the Port Authority’s resources in ways that would encourage mayors and other local figures to support the Governor.” Usually this was largesse, or greasing the wheels, including providing shuttle services in Fort Lee through the Port Authority. But that took a serious turn in September of 2013.

 

On the first day of school, September 9th, this trio closed or re-directed two out of three dedicated lanes from Fort Lee onto the G.W. during morning rush-hour because Fort Lee’s mayor, Mark Sokolich, a Democrat, declined to endorse Christie, a Republican, for re-election. Kelly and Baroni claimed, at the time, that this was for a traffic study. Traffic backed way up into Fort Lee, and a lot of commutes were seriously disrupted. Again, Justice Kagan, writing for unanimous Court writes very well, “The three merrily kept the lane realignment in place for another three days. It ended only when the Port Authority’s Executive Director found out what had happened and reversed what he called their ‘abusive decision.’”

 

Scandal ensued. Baroni, Kelly, and Wildstein each lost their jobs. Federal charges followed. By the time the case reached the United States Supreme Court, three convictions remained for Kelly and Baroni: wire fraud, federal program fraud, and conspiracy. Now under wire fraud, one must prove that -- the government must prove one is obtaining money or property by means of false or fraudulent pretenses, representations, or promises. Similarly, federal program fraud, the government must prove one is obtaining, by fraud, the property of a federally funded program or entity, which included the Port Authority. The third charge, conspiracy, really depended, of course, on the legitimacy of those two primary charges.

 

Justice Kagan goes through some of the history both McNally v. United States in 1987, and Cleveland v. United States in 2000 affirmed the property requirement. This Court has made clear that McNally, etc., prevents these statutes from criminalizing all acts of dishonesty by state and local officials. Now, as an aside, after McNally, Congress enacted the honest services fraud statute in 1988, that was narrowed to requiring not just the deprivation of the rights to honest services, but narrowed to requiring a bribe or kick-back scheme in the case Skilling v. United States in 2010.

 

So, what was the government to make of this property requirements? Well, it wasn’t the lane realignment out of Fort Lee that this trio was going after, via the lie about a traffic study, but the resources to pull off the realignment. Thus, the theory went, the government was defrauded of: (1) the money used to compensate traffic engineers for the sham study; and, (2) the money used to pay back-up toll collectors who performed work relating to the lane realignment. Again, to quote the opinion, “But that realignment was a quintessential exercise of regulatory power. And this Court has already held that a scheme to alter such a regulatory choice is not one to appropriate the government’s property.” The use of the Port Authority employees was incidental to the scheme, not the property that was being sought.

 

Now, in counter examples, Justice Kagan affirms that these laws both still matter and are both still applicable. For example: using fraud to get on-the-clock government workers to renovate a private home; using fraud to induce government employees to do gardening work for political contributors; very traditionally, using fraud to take cash from a government bank account. All of these might properly fall under wire fraud, or federal program fraud, and there are plenty of citations to show that such convictions have occurred and have been upheld. Again, to quote the opinion, “But that property must play more than some bit part in a scheme: It must be an ‘object of the fraud.’” Otherwise, it is plain to see that any deception relating to government regulatory authority will involve labor costs. A very nice citation, I think footnote two in the opinion actually cites to an opinion by Judge Easterbrook from the 1990s. To quote the opinion, “Every regulatory decision requires the use of some employee labor. But that does not mean every scheme to alter a regulation has that labor as its object.”

 

Finally, let me quote one more, “If U.S. Attorneys could prosecute as property fraud every lie a state or local official tells in making such a decision, the result would be—as Cleveland recognized— ‘a sweeping expansions of federal criminal jurisdiction.’” Now in January in a teleform following oral argument in this case, I predicted, with a fair amount of hedging, that there would be a unanimous, or near unanimous, ruling for Kelly and Baroni. And unanimous it was. If it weren’t for a jury trial, guilty verdict, and an affirmation of that verdict by the Third Circuit, you might think there is nothing to see here. And just over 12 pages, Justice Kagan precisely lays out that—leave Skilling aside, leaving McDonnell aside, leave more recent Supreme Court decisions aside— the theory here was pretty thoroughly rejected by Cleveland v. United States 20 years ago, but what is a law in the face of righteous indignation? And from serious people, no less.

 

Here’s a small sampling from Twitter yesterday, “The Supreme Court’s a devoted combatant against anti-corruption laws, and that includes Republican & Democratic appointees. They can’t conceive that corruption exists or that laws have a role in stopping it.” That’s from Walter Shaub, former Director of the Office of Governmental Ethics, and Senior Advisor to Citizens for Responsibility and Ethics in Washington, otherwise known as C.R.E.W.

 

From academia, here’s a tenured opinion, “The Bridgegate decision is dispiriting, and further limits the ability of prosecutors to go after mendacity or corruption by government officials. This is a win for corrupt politicians everywhere.” That’s Professor Ciara Torres-Spelliscy of Stetson University School of Law.

 

It would be foolish for me to not acknowledge here that, indeed, Kelly and Baroni behaved corruptly. They broke the public trust and should never have a place in government again. I suspect neither of them will, but that’s not enough, at least not for the professional reform community. Even from attorneys and law professors, we get this indignation against a 9-0 opinion. Take the nastiest, silliest conspiracy theory you can come up with. Farthest left justice, whomever you might believe that is, and farthest right justice, whomever. Doesn’t matter. No dissenting opinion, much less dissenting vote. Same story as McDonnell in 2016. Even Skilling in 2010 was unanimous as to the narrowing of honest services fraud.

 

What do we make of, not just commentators angry about broader corruption, the legal scholars unleashing similar rhetoric against the entire Supreme Court? Corruption is not the object of wire fraud and federal program fraud. That’s it. That’s pretty much the whole Kelly decision. That does not necessarily mean the corruption here could not be legally punished. As Justice Kagan pointed out, specifically New Jersey has an official misconduct statute. That would have been a more appropriate charge to bring here, but at trial and on appeal, it would also have been susceptible to serious challenges. Mr. Baroni was pretty clearly authorized to redirect those lanes and the New Jersey law Kagan cites requires, “unauthorized exercise of official functions.”

 

Culturally it’s a blessing that we’re collectively outraged by corruption such as Bridgegate. In far too many countries, far worse corruption is expected and accepted. But I believe the outrage has gone too far. Corruption is so broadly defined that it now basically means to hold opposite political views. To be corrupt can mean to exercise one’s power lawfully, but in a manner that others oppose.

 

Make no mistake, this is a bi-partisan problem. Following yesterday’s ruling, which vindicated some Republicans, I literally received a text from a non-attorney friend asking, “Will they finally go after …” I’ll let you fill in the blank. You have dozens of political actors to choose from, given the zeitgeist. But we, as lawyers in any capacity of any political persuasion, or any constitutional school of thought, have a duty to rise above this zeitgeist, as the Court has consistently done. The line of cases here from McNally to Cleveland to Skilling to McDonnell, to Kelly is now a broken record. This should be a wake-up call for prosecutors, law students who aspire to be prosecutors, the academics who teach those law students, and writing on those topics of corruption and ethics. And perhaps, most importantly, the professional reform community at large.

 

Reversing the convictions here is not a win for corruption. It is an affirmation that to ignore the law in pure incorruption is the greatest corruption of all. Thank you.

 

Greg Walsh:  Let’s now go to audience questions.

 

Caller 1:  Hi, good afternoon, and thank you hosting the forum. So my question is, what are the implications of this ruling moving forward as it applies to the federal government looking to prosecute mail fraud and other similar fraud cases?

 

Stephen R. Klein:  I think, traditionally, in the mail fraud context, again, it’s going after property, right? It’s interesting, I think, and this goes back more to the briefing in the case, which I read much more thoroughly before oral argument in January, that, particularly on appeal, had Kelly and Baroni’s counsel -- were going after—and I think they did a very good job of this— but at the same time, how many pages can you fill of, “look, you’re missing this really important element that they weren’t trying to deprive the government of property.” And, they even were going -- I mean this case reached such absurd levels that the United States made some kind of lame assertions that they eventually, I believe, had to surrender at oral argument that, oh well, they, “commandeered these lanes” and that was just so laughable. Like, no, no, they don’t, they don’t own the lanes now. They didn’t give away the lanes to a company they owned, or something. Things of that nature. They were just redirected and used that day, or for those four days, by people coming in from -- not from Fort Lee.

 

So, I think, and I appreciate that Kagan has a, I wouldn’t call it a string cite, but her counter examples show that I don’t know that this changes much. I think what this was, was an exceptional case with overzealous prosecutors trying to redefine, or get around, the requirements put forward in Cleveland. Justice Breyer at oral argument in January I think really nailed it. He kept naming, “would this count”, while “what you’re saying is honest services fraud…what you’re saying is honest services fraud.” Kept, you know, repeating this problem that they were going back to something that had been specifically dismissed in 2010 in Skilling. So, the broader implications here are, practically speaking, I think are pretty narrow. Broader implications narrow; that’s a funny thing to say. I don’t know that this has much of an effect because this is such an unusual prosecution.

 

I hope that, again, given this long line of cases that have now occurred, that maybe there’s a cultural awakening, not necessarily in the media, but among prosecutors to say it’s really not our job to use any law we can in our arsenal and stretch it to these kind of extremes to go after a generic kind of corruption.

 

Greg Walsh:  We’ll now go to our next caller. You are on the line.

 

Caller 2:  Hey, Steve, thanks for doing this. I was interested to read former Governor Christie’s criticism of this prosecution. He, as I’m sure you saw, kind of blamed it on the Obama Justice Department, but in fact, of course, even though the case was brought originally by the Obama Justice Department, the convictions were defended by the Trump DOJ up through Supreme Court litigation. So, I’m wondering if you have a view on that in terms of is this a DOJ problem more than it’s an Obama DOJ or a Trump DOJ problem?

 

Stephen R. Klein:  Yeah, I think it’s a bi-partisan problem and to bring in my own experience here, at the state level where political corruption prosecutions are -- I think -- continue to occur, you know, with as much, if not more, frequency. It can be red states, it can be blue states, it can be Republican AGs and Democrat AGs. I think there’s a desire to nail and again, these are often elected officials, and how do you win, you know, get political popularity? By going after it, and in this case, in that sense, you couldn’t get any nastier.

 

Again, it’s a blessing that in the United States this is the kind of power problems we often deal with. This is something that we will not accept. That’s great culturally, and that should be -- the right move was made by Christie here to fire the people at issue. Greg and I were talking before this call and I didn’t discuss this, and it didn’t make the media, but Chris Christie, when I was at oral argument, former Governor Christie was sitting right in front of me and I was kind of surprised. I was like, “Man, this was really bad for you. This was a necessary house cleaning, but you had these people in your midst. These were in your orbit and what they did was corrupt.” So, his statement, I think, is off-base. I agree with him that the law—I think he made some comments about the overextension of the law—and again now there’s a 9-0 opinion agreeing that this law should not have been applied in this way, but I don’t -- it’s part of the same kind of problem. If we’re going to keep politicizing every prosecution, that’s not going to really help solve the problem.

 

Greg Walsh:  We’ll now go to caller from area code 631.

 

Caller 3:  You mentioned politics and without, I guess trying to remove the political cast on the question, just in light of the judiciary. Looking at Flynn and looking at the abuse in the FISA Courts and the apparent over-reaching of, typically the Ninth Circuit, and again removing the politics from it, how do we get into a more balanced judiciary and remove the obvious cast of the judges that are handling these cases, that they get as far as they do, like the prosecution of Flynn, etc.?

 

Stephen R. Klein:  I think -- I take a lot of heart in this decision, and I like and I appreciate that to have such -- have 9-0 rulings in something as politically heated as this. That also went for McDonnell. I was -- it’s wrong for a governor to have a good friend who’s buying him watches, and his wife dresses, and loaning him a Ferrari for the weekend, right? That’s a problem in and of itself. The fact there was, he did not take any official actions in benefit of that guy. He made a few introductions, but he did not really make use of his authority there that would rise to the level of bribery. Yet, despite its nasty veneer, a 9-0 opinion saw through that, legally. So I try to cast it in a more optimistic light.

 

As to these broader problems, it’s interesting, and I wish I had more insight into this Flynn -- the dropping of the charges after his guilty plea, and even more broadly that that was a guilty plea under Section 1001, which is a very nasty law, that is generally applied to citizens, not really against government actors, but rather against people who lie to the government, materially. That’s a law that’s been around for decades and I don’t believe, as far as I remember, the Supreme Court hasn’t really narrowed that and certainly hasn’t addressed it. But I think Flynn, again, from what I know, has revealed that, not so much the DOJ, but the FBI as far as an investigative method, all too often, while we can’t get them on a real crime so let’s get them in on an interview and see if he slips up and says something, makes a material misrep. or a lie or a misrepresentation. And then it doesn’t matter, then we’ve got him on this. And that’s a problem that goes far, far beyond Flynn and is probably, maybe ripe, and this kind of goes to the whole reform community, who don’t just include, you know, politics in their definition of corruption, but actually believe that there’s somehow that we can regulate: politicians lie, just generally.

 

The mendacity, I think that was the word I read. That’s been watered -- in the First Amendment context, we had U.S. v. Alvarez with the striking down of the stolen Valor Statute so, you know, there used to be, and I deal with this in some of my civil litigation, people saying that lies are not protected by the First Amendment. I’m like, well, yeah, actually they are. You can’t, at least in the context of -- you can’t just categorically prohibit them. Rather, similar to what we’ve seen here in the federal program fraud. If you’re going to regulate speech in that way, it has to be for a purpose such as fraudulent misrepresentation, where you’re lying to try and actually influence a transaction through which you might benefit.

 

So I apologize going off on this riff there, but I guess I would just frame it more that this is this glimmer of hope, as far as -- look, there’s an understanding here across the spectrum of politics, which I prefer to try and at least give the justices the benefit of the doubt on many of these things, but this is a really great example, and the fact that we’re now looking from McNally to Kelly 20 years, or 30 years excuse me, of precedent that I think sort of lines up to if this is going to be -- if you’re going to go after corruption, you have to do it in a specific context.

 

Greg Walsh:  Okay, let’s go to our next question.

 

Caller 4:  Hi, do you think the result might have been different if the prosecution had focused on deception that was used to cause this study, so to mislead the people who were conducting the study? I’m thinking that that would have brought it within the particular language that the Court used to distinguish this from the cases under Pasquantino and Cleveland where there was a scheme that was designed to usurp a public employee’s paid time, or to waste the employee’s services.

 

Stephen R. Klein:  I think -- I don’t -- I’m not familiar with -- I want to be very clear, I have not reviewed the entire trial record. I do not know the evidentiary record, but I think it’s pretty clear in the opinion, that I believe the U.S. government all but conceded that was not the -- use of the time was not the object of the scheme. I think Justice Kagan details it pretty well that it was when they were trying to do this, that they realized we are going to need two extra toll booth operators to be on stand-by. They had already decided they were going to do this when suddenly, we’ve got to do this. Well, okay, incidental.

 

Moreover, the traffic study Justice Kagan is pretty clear that, yeah, they have this -- these guys go and undertake this. It was almost, the same story, kind of contemporaneous or almost after the fact that they were already doing this and then they were like, yeah, we better have a reason for it and so they had those workers go and start doing it, but they never -- and I did think that was kind of an interesting note, and that might be worth flushing out a little bit, that Justice Kagan did note they didn’t even try to get the results of said study. They didn’t try to engage so it’s, again, clear that they were just doing -- these things were all incidental to what it is they were setting out to do with their fraud. As to if they had really focused in on it, possibly. But it just strikes me that from what’s in the opinion of the evidentiary record that this wasn’t the case here.

 

Greg Walsh:  We will now go to caller from area code 305.

 

Caller 5:  As a follow-up question: If at the outset, the objective was to waste Port Authority money, as it were, so if at the outset they had known that they would be incurring these costs for the overtime -- for the workers to cover each other when they went on their break, then they would have met the element to deprive the victim of money or property, is that correct?

 

Stephen R. Klein:  I don’t think so. I think, again, it can’t just be this, sort of, let me only put some contours on it, right? Let’s say you want to get an actual study done and you accomplish that through fraud. Say there’s an, I don’t know, an environmental study and you didn’t like the results, and so you used deception to get the government to conduct another one in hopes that it will say something different. Whether or not that’s done, the object was the study in that case, so, maybe, you know, maybe. It certainly would be a far more -- it certainly wouldn’t be incidental. The work would be more in line with having -- defrauding the government to go and do -- cleaning the house -- gardening at a political donor’s house, right? So, yeah, that would get us closer, but I don’t think, again, I just don’t think there was a question here as to what the object of the scheme was.

 

Greg Walsh:  Caller from area code 202, you are now on the line.

 

Caller 6:  Yes, thank you. I came late to this so it may have already been discussed. My apologies. I’m looking at this more from a federalism standpoint. What the hell are the feds even getting involved in these political cases for? We have decades of the federal government sort of preening -- it comes crashing into cases that really -- if there’s corruption, let the state handle it. Why didn’t the Attorney General of New Jersey go after this if the people of New Jersey were so outraged by it?

 

I go back to the days of Mayor Daley in Chicago when the feds brought down a lot of the daily [inaudible 26:51], the federal prosecutions. I’m not sure they served the public interest. I guess I’ll put a note on my comment: I know in the McDonnell case that the Department of Justice in Washington actually decided not to go forward after the Supreme Court case, and gee, imagine why? Yet the U.S. Attorney’s Office actually wanted to refute -- to retry McDonnell And I just think there needs to be some guidance in main Justice, which says basically in these political criminal cases, the feds should stay out unless there’s some really local rioting of political or criminal matter that has to be taken to that level. What are your thoughts about that?

 

Stephen R. Klein:  I think the proof is in the pudding, as you described. One case I haven’t mentioned on this call is, of course, the prosecution of Senator Ted Stevens, which ended up being -- stands as probably one of the biggest black marks on the DOJ, perhaps in the last two decades. Justice Kagan points that out in her opinion, that—and I did discuss this earlier—that there is an official misconduct statute under New Jersey law and that I do believe, having read that law and some of its precedent, that would have been a more appropriate thing -- more appropriate charge, that would have been appropriately brought by state officials.

 

The politics of this are, it’s my understanding, I believe the AG in New Jersey declined to bring charges and that was part of the brouhaha, here leading up to this. We did discuss—to the caller— we did also discuss Governor Christie’s statement yesterday, a little bit charged, really trying to pin this on the Obama Justice Department, but in fact, you know, this appeal obviously having heard last January, it was clearly a Republican SG’s Office arguing on behalf of the United States by the time it got there so, but, you know, I think there’s a federalism angle to it.

 

I think it’s better when these kind of cases are handled locally and perhaps by people -- elected officials—accountable officials—but as far as prosecutors who just come up with zany legal theories, that’s, again, a bi-partisan problem, but it’s also -- federalism doesn’t solve that. Again, this -- when the professional -- it’s one thing to have a sort of ever growing and ever self-righteous reform lobby here in D.C., but when the true believers get the levers of power, my favorite example is the Public Integrity Unit of the Travis County District Attorney’s Office in Austin, Texas, going after Tom DeLay. That goes back to the mid-2000s, taking three legal campaign contributions and turning into money laundering. I mean it’s -- what has happened since then? Has the reform community adjusted its thinking on, you know, that’s not money laundering? No, now they just use the term all the time. Any time there’s like, you know, even for a legitimately, any legal kind of contributions: ah! It’s money laundering.

 

In Texas, brought not by the Public Integrity Unit, but in Collin County, a case I did some Friend-of-the-Court work on, another campaign finance case, in which the judge basically was convicted of bribery, for what might have been an illegal campaign contribution, but the theories put in front of the jury were, number one, it might have been a bribe for the judge after she was elected to decide in the donor’s favor. Alright, that’s a legitimate bribery theory you’ll get no question from me. In the alternative, the jury could decide, oh, it was a bribe to run for office. Or, my third one, slightly different: a bribe to continue running for office, and the jury did not have to decide which of those theories were, so you had a lot of people convicted for bribery: the donors, the judge, and that went all the way up to the Texas Court of Criminal Appeals, who had to say that’s -- yeah, you can’t do that. You can’t call an illegal campaign contribution a bribe to run for office. That’s a serious perversion of justice.

 

So it strikes me -- you know, now I’ve just named -- we’ve talked here about the DOJ, I’ve just mentioned a special Public Integrity Unit in Texas, but then there’s also local prosecutors. That kind of ambition to nail the corruption all too often -- due process is just something we’ve got to get around in order to get that corruption, and I will continue to believe and preach that that is a far, far worse problem than most of these cases are actually even trying to correct.

 

Greg Walsh:  You said this decision was pretty straight forward. Is there anything of significance to take away from the 9-0, final choice? Final outcome?

 

Stephen R. Klein:  I think it’s just the number of 9-0s. That’s the part that -- it -- McDonnell: 9-0. Skilling: 9-0 as it relates to the narrowing of honest services fraud. That brings us up to speed on the last decade, and so, that’s the part that people -- that we need to start paying attention to this broken record that these corruption laws are not meant to be a hammer for any federal prosecutor with an itch. That’s the part I take away from that and, as previously discussed, I take that as a real credit to all nine justices.

 

Greg Walsh:  We have one more question. Area code 914, you are on the line.

 

Caller 8:  Thank you very much Steve. This is helpful. I don’t know if you can speak to it, but again, Kelly wasn’t the only 9-0 case that came down yesterday. The Court also issued one in U.S. v. Sineneng-Smith, so in Kelly it seemed that this was really an abuse of the DOJ being over-active and then the other case, it was pretty clear that Ginsburg slapped down the Ninth Circuit for going too far. Do you see this as a signal that this current Court, and this current climate, is actually exercising some power to let people know you can’t do this, you have been over-stretching?

 

Stephen R. Klein:  Well, and I haven’t -- I only know broad strokes similar to the dismissal of the Flynn case yesterday, I’m only vaguely familiar with that decision, even how to pronounce it, so thank you for that.

 

I think, if it hasn’t already, there will be another separate teleforum on that, and I think it should be pretty fantastic, but the idea of -- I certainly have -- was floored to hear about the circumstances of that case. And I’ve seen some snark about, you know, I think the snarkiest thing I saw was oh, the Court just rebuked the Ninth Circuit for not -- for addressing arguments not made by parties, and they did it in a way that they were, you know, they did this, and that wasn’t an argument raised at the Supreme Court by the parties. So I guess that’s kind of cute, but you reach a point where we’re not going to be reversing Marbury v. Madison so, yes, sometimes sua sponte happens. Alright, it has to happen and so that’s kind of what I brought back, but as far as the circumstances and, you know, Judge Reinhardt, rest in peace, even reversing him in the grave, it’s -- I think it was necessary given that the -- just that case was commandeered by -- and the Court let, you know, Friends-of-the-Court commandeer the case, and that just shouldn’t happen.

 

Greg Walsh:  Steve, is there anything you want to add before we end today?

 

Stephen R. Klein:  No, and I really appreciate the time Greg. And thanks everybody for calling in. And if any of you happen to be prosecutors or in the DOJ, don’t ever bring a case like this.

 

[Laughter]

 

Greg Walsh:  I think we can all get behind that. I’d like to actually point out to that last caller that we did a Courthouse Steps Decision Teleforum on the Sineneng-Smith case yesterday afternoon and that should be on FedSoc’s website, and Google Play, and Spotify. On behalf of The Federalist Society, I want to thank our speaker for the benefit of his valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.