BridgeGate, Quid-Pro-Quo, and the New York Times Walk of Shame

This month the CEO of United Airlines resigned amid allegations that United had attempted to curry favor with the chairman of the Port Authority of New York and New Jersey by running a regular flight from Newark to South Carolina so that the official, David Samson, could go to his beach house each weekend. The Newark-Columbia, S.C. route apparently lost money each trip and was called “the chairman’s flight” by other Port Authority officials.

Is it against the law to fly planes from Newark to Columbia, South Carolina? No – not unless you’re doing it in the hopes of securing public money for better lease terms and capital improvements at your terminal from the official who flies it each week. Federal prosecutors routinely charge participants in such mutual backscratching deals under federal mail and wire fraud statues, based on the theory of “theft of honest services.” If a private entity gives something of value to a public official in exchange for favorable treatment from that public official, that’s a “scheme an artifice to defraud and deprive the public of its intangible right to the official’s honest services,” and both sides are criminally liable.

The quote above is from the federal complaint against Sheldon Silver, the former Speaker of the New York State Assembly, who was charged with pushing companies seeking benefits from the state to employ two law firms for their real estate business. The two firms then kicked back millions to Silver in “salary” and “referral fees.” It’s the same principle. It’s not illegal for a state lawmaker to earn money as a lawyer. It is illegal when that money is funneled to the lawmaker in exchange for favorable official treatment.

Silver, at least, apparently delivered when he was (allegedly) bribed. For decades, he was the most powerful politician in New York, and his patronage was the golden ticket. Samson? Not so much. He resigned under a cloud in 2014 during “Bridge-Gate.” (That, if you recall, was the only-in-New-Jersey escapade in which staffers at the Port Authority and the governor’s office conspired to create a traffic jam on the George Washington Bridge to punish a small-town mayor who had not endorsed Chris Christie for governor.) The New York Times reports that “within days” of Samson’s resignation, United cancelled the South Carolina route. That timing, it could be argued, is circumstantial evidence that United was not running the route for business reasons.

Now, it’s entirely possible that there was no quid pro quo contemplated, and no coordination between United and Samson over the scheduling of the flights. It’s not illegal to fly to South Carolina just because you happen to know that the chairman of the Port Authority has a house there. And it’s not illegal to discontinue a route. Neither Samson nor anyone from United has been charged, and there may have been no crime here at all. But if this is all an innocent misunderstanding, it’s one that could and should have been prevented by timely legal advice about public corruption laws beforehand. When your CEO is doing the walk of shame across the front page of the New York Times, it may be too late.

Caleb Mason

Caleb Mason is a partner with Brown White & Osborn LLP. He is a former federal prosecutor, and handles a wide variety of civil and criminal litigation. He has authored numerous scholarly publications on criminal and constitutional law, and is a frequent media commentator on criminal-justice issues. He was recently appointed to the Police Commission for the city of Claremont, California.
Caleb Mason