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LETTER OF THE LAW

The US Supreme Court’s unanimous Bridgegate opinion reads like fiction

US flag over the GW Bridge.
Reuters
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  • Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Washington DC

The US Supreme Court today decided a matter about a four-day political scandal on the 12-lane George Washington Bridge, which connects New Jersey and New York. The unanimous opinion penned by justice Elena Kagan is a pretty fun read as these things go, though the decision might surprise you.

“The case’s cast of characters are public officials who worked at or with the Port Authority and had political ties to New Jersey’s then-Governor Chris Christie,” Kagan explains. In 2013, these officials—William Baroni, deputy executive director of the Port Authority, his staffer David Wildstein, and governor Christie’s deputy chief of staff, Bridget Anne Kelly—were involved in a cover-up that became known as “Bridgegate,” arising from a lane-change scheme that wreaked havoc on the bridge and cost the Port Authority $5,400 in employee pay.

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 federal wire 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 appealed to the high court.  

As Kagan puts it, “[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. The fateful lane change arose out of one mayor’s resistance to such blandishments.”

There is no question Christie’s staffers and supporters acted crookedly when they claimed to be conducting a traffic study that was actually designed to cause chaotic conditions and hurt the Democratic mayor of nearby Fort Lee, New Jersey for refusing to endorse Republican governor, Christie, for reelection. Kelly told Wildstein that she wanted to “create a traffic jam that would punish” the mayor and “send him a message.” Baroni signed off on the scheme, and Wildstein came up with, in his own words, “a cover story.”

He claimed the lane change was part of a traffic study, which would assess lanes dedicated to Fort Lee and the extent to which they were necessary. “Wildstein, Baroni, and Kelly all agreed to use that ‘public policy’ justification when speaking with the media, local officials, and the Port Authority’s own employees,” Kagan explains. To render the claim credible, Wildstein had Port Authority engineers collect some data and the agency put an extra toll-collector and employees on the bridge as one Fort Lee lane was closed for the fake study.

Thus, on the first day of the new school year, buses were stuck on the bridge, ambulances were locked in traffic, and the officials were gleeful about their success. Kelly texted her co-conspirators,“Is it wrong that I am smiling?” Kagan writes:

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.”

All of this crookedness was established at trial, but the high court does not think that the local officials technically committed the crimes they were charged with, writing:

The question presented is whether the defendants committed property fraud. The evidence the jury heard no doubt shows wrongdoing—deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct. Under settled precedent, the officials could violate those laws only if an object of their dishonesty was to obtain the Port Authority’s money or property.

According to the court, the realignment of the toll lanes was an exercise of regulatory power. The justices have already held that exercising this power “fails to meet the statutes’ property requirement.” So, although the government argued that the officials took property from the Port Authority in the form of unnecessary pay to workers who stood on the bridge pretending to be conducting a survey, the justices concluded that “the employees’ labor was just the incidental cost of that regulation, rather than itself an object of the officials’ scheme.”

In other words, the officials were not trying to take anything from the Port Authority. Instead they were making a point to Fort Lee’s mayor involving deception, corruption, and abuse of power, which isn’t technically what the law in question criminalizes. “The upshot is that federal fraud law leaves much public corruption to the States (or their electorates) to rectify,” Kagan explains after a recitation of the court’s precedent. So the convictions have been reversed.

While it’s tempting to get incensed over the decision, it’s evident from the relish with which Kagan describes the details of this scheme—indicting the officials with her words—that the justices didn’t approve of Bridgegate. They simply felt compelled to follow precedent and stick with the letter of the law. In this case, that may feel like a shame. But in the big picture, this strict approach is critical, the justices argue. “To rule otherwise would undercut this Court’s oft repeated instruction: Federal prosecutors may not use property fraud statutes to set standards of disclosure and good government for local and state officials.”

Kagan and her colleagues are obviously not thrilled with this delightfully-written decision and they seem aware of the likelihood that it’ll be poorly received by at least some people, if not Kelly and her ilk. Kagan concludes, “For no reason other than political payback, Baroni and Kelly used deception to reduce Fort Lee’s access lanes to the George Washington Bridge—and thereby jeopardized the safety of the town’s residents. But not every corrupt act by state or local officials is a federal crime.”

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