The George Washington Bridge connecting New York and New Jersey is the world’s busiest overpass and the subject of a 2013 scandal known as “Bridgegate.” Next week, the US Supreme Court will consider whether government officials convicted of crimes stemming from a scheme to reallocate lanes on the bridge acted criminally or just crookedly.
The shady lane changes were a form of political retaliation. Then New Jersey governor Chris Christie’s staffers and supporters at the Port Authority of New York and New Jersey claimed they were conducting a traffic study but were, in fact, punishing the Democratic mayor of Fort Lee for refusing to endorse his Republican governor for reelection.
Normally, 3 of 12 toll lanes on the bridge’s upper level are separated during morning rush hour, facilitating the passage of traffic from Fort Lee and the region. But in an effort to pressure the mayor to endorse the governor, only one such lane was kept open. Gridlock ensued and paramedics were forced to cross the bridge on foot. The fake study began on the first day of a new school year to ensure maximum hassle to commuters, according to one of the conspirators who pled guilty and cooperated with prosecutors.
It lasted four days before the executive director of the Port Authority got wind, ordered the lanes realigned, and vowed to discover what went wrong, saying, “I’m not going to have someone die in the back of an ambulance, not on my watch.”
William Baroni, deputy executive director of the Port Authority, his staffer David Wildstein, and governor Christie’s deputy chief of staff, Bridget Anne Kelly, all found themselves out of work and facing criminal charges after it was discovered that they concocted a phony study, lied to officials, and agreed in their emails to create chaos, which cost the Port Authority $5,400, including payments to engineers and an additional toll collector who wouldn’t otherwise have been necessary.
Wildstein pleaded guilty to two counts of conspiracy, cooperated with authorities, and was sentenced to probation. Kelly and Baroni were indicted, tried, found guilty, and ultimately sentenced to 13 and 18 months in prison, respectively, for wire fraud, federal-program fraud, and related conspiracy convictions. The Third Circuit Court of Appeals upheld the convictions, finding that they deceived the Port Authority and deprived it of property in the form of unnecessary labor and the right to open lanes.
Kelly, joined by Baroni, turned to the Supreme Court for help, arguing that the convictions set a dangerous precedent that will “criminalize politics and chill public service.”
Petty, insensitive, and ill-advised
In her brief to the Supreme Court, Kelly’s attorneys argue that concealing the political motives behind an “otherwise legitimate official act” does not rise to the level of a federal felony offense. “There is no way that could be the law. Taken seriously, it would allow any federal, state, or local official to be indicted on nothing more than the (ubiquitous) allegation that she lied in claiming to act in the public interest.”
Kelly says that the Port Authority wasn’t fraudulently deprived of property and that treating policy decisions as property “would put every official action in the sights of the fraud laws, turning them into broad government ethics codes.”
Given her position, some may say that’s not such a bad thing.
“The state [was] not being defrauded of property; it [was] being deprived of the good-faith service of its agent acting within the scope of her authority,” Kelly’s brief argues. Yes, she breached her fiduciary duty and the “conduct here was petty, insensitive, and ill-advised” but “in our system, political abuses of power are addressed politically.”
The federal government vehemently disagrees. It points out that the conspirators were warned that the realignment was a public safety hazard, lied to Port Authority officials about having the study approved, and orchestrated a fake research initiative totally inconsistent with usual procedures. Traffic pattern studies are normally modeled on computers and not conducted live—if they are, authorities are given fair warning, which didn’t happen here. They also issued a false press release and wrote fraudulent reports to support their cover-up.
Moreover, the government notes, the conspirators joked about orchestrating chaos in their exchanges. At one point, Wildstein forwarded Kelly a text from the Fort Lee mayor stating that the locality was having a problem getting kids to school. Kelly responded, “Is it wrong that I’m smiling?”
The government actually agrees with Kelly and Baroni that they couldn’t be convicted of a crime for undertaking an otherwise official act within their authority without revealing their true motivations. But it counters the contention that this is all the conspirators did.
Under the applicable fraud statute, the US argues, the “convictions are valid so long as they rest on a scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” The brief explains:
[T]he scheme here satisfies all of the requirements set forth in this Court’s precedents interpreting that text. The scheme involved materially false statements about the existence of a traffic study that did not actually exist. Those false statements were the means through which Kelly and Baroni obtained control of the Port Authority resources necessary to realign the lanes and gridlock Fort Lee. And those resources—payments to workers who would not otherwise have been on duty, the value of wages paid to salaried employees whom the conspirators unwittingly conscripted into their plans, and the right to control the real property of the George Washington Bridge—are each a “‘species of valuable right [or] interest’” that constitutes “property” under the fraud statutes.
Rhode Island senator Sheldon Whitehouse joined the fray, filing an amicus brief supporting the government and chiding the high court, writing, “The founders empowered the public to protect the public sphere against corruption, including through the jury box. The Supreme Court has dramatically narrowed the definition of corruption, preventing the public from holding its elected officials accountable.” Whitehouse urged the justices to affirm the convictions.
Naturally, the National Association of Criminal Defense Lawyers supports Kelly and Baroni. Its amicus brief warns that allowing the convictions to stand “substitutes the criminal process for the political process.” The association contends the case is an example of grave prosecutorial overreach. “If state decision makers deprive the electorate of the candid reasons for policy choices, the solution is at the ballot box, not the jury box.”
Next week, the justices will get to question the parties at oral arguments. A decision is expected by the term’s end in late June.