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John J. Zefutie Jr.A Bridge To Nowhere: Kelly, et al. v. United States

May 8, 2020

For better or worse, people across the country who hear “New Jersey” likely think of two things—(1) the Sopranos (good) and (2) Bridgegate (not so good).  As we all know, “Bridgegate,” as it was dubbed by political pundits and others in the media, was a lane closure scandal.  Two individuals close to former Governor Chris Christie—Bridget Anne Kelly and Bill Baroni—orchestrated a lane closure of the George Washington Bridge as political payback because the mayor of Fort Lee—a Democrat—refused to support Governor Christie’s bid for reelection.

The media went wild.  Investigations ensued.  And both Kelly and Baroni were fired.  Then, the Federal government stepped in.  Baroni and Kelly were indicted, tried, and found guilty of violating federal statutes that prohibited wire fraud and fraud on a federally funded program or entity.  See 18 U.S.C. §§1343, 666(a)(1)(A).  Yesterday, however, the Supreme Court of the United States reversed those convictions in a short, unanimous decision written by Justice Elena Kagan.  That decision, while good news for Kelly and Baroni, also highlights the danger of Federal government overreach and the use of criminal law to enforce what some would call (depending on who’s in charge) “good government.”  Enforcing good government is something that voters should do.

In Kelly, the statutes at issue targeted fraudulent schemes for obtaining property.  At the time of the lane closures, Kelly was Deputy Chief of Staff to Governor Christie and was responsible for maintaining relationships with local officials.  Baroni was Deputy Executive Director of the Port Authority of New York/New Jersey— the second highest ranking New Jersey official in that agency.  The George Washington Bridge is a twelve-lane highway that runs between Fort Lee, New Jersey and New York City.  Nine of those lanes feed cars from three separate highways onto the bridge while three other lanes service only cars coming from the town of Fort Lee.  It’s the busiest bridge in the world.

When the mayor of Fort Lee did not back Governor Christie’s reelection campaign, Kelly contacted Baroni’s chief of staff, David Wildstein, who suggested eliminating the three dedicated Fort Lee lanes, resulting in gridlock throughout the town.  Kelly agreed: “Time for some traffic problems in Fort Lee.”  Baroni then signed off.  Wildstein—who became the Government’s star witness at trial—then devised a cover story that the lane changes would be part of a “traffic study” to assess the need for the Fort Lee lanes, and all agreed that they would use “public policy” as an excuse for the lane closures.  Wildstein instructed the Port Authority engineers to take some measurements and to collect data on how back traffic was delayed.

In addition, Wildstein and Baroni incurred the cost of extra toll collectors at the George Washington Bridge.  To prevent traffic accidents, one Fort Lee lane was left open, and two toll collectors were present in case the one on duty needed a break.  As Baroni put it: “only at the Port Authority would [you] have to pay a toll collector to just sit there and wait.”  The traffic jam hit on September 9—the first day of school and lasted for another three days.  It ended, according to the Court, when the Executive Director of the Port Authority discovered the so-called traffic study and put an end to it.

Kelly and Baroni were convicted, and the case ended up before the Supreme Court.  Justice Kagan started the Court’s analysis by relying on its 1987 decision—McNally v. United States, which held that the wire fraud statute prohibits only schemes to deprive a victim of money or property.  The federal-program statute also prohibits obtaining property (including money) of a federally funded program by fraud.  Thus, as the Court put it, the Government had to establish that Kelly and Baroni engaged in deception and that an object of that deception was property.  The fraud statutes, according to the Court, “did not authorize federal prosecutors to set standards of disclosure and good government for local and state officials.”  (internal citations and quotations omitted).

The Government flunked the “property” test.  The Court unanimously rejected the Government’s argument that Kelly and Baroni tried to “commandeer” part of the George Washington Bridge and to take control of the physical lanes.  Lane realignment, the Court said, is a “quintessential exercise of regulatory power,” and a scheme to alter a “regulatory choice” does not appropriate government property.  Justice Kagan pointed out that neither Kelly, nor Baroni, walked away with the Fort Lee lanes or converted the lanes to some non-public use.  The Court also rejected the Government’s claim that Kelly and Baroni tried to deprive the Port Authority of the costs of the engineers and toll collectors at the Bridge.  Those costs were only an “incidental byproduct” of the scheme to close the Fort Lee lanes.  And neither sought to retain the services those government employees provided.  Were it any other way, even a practical joke could be a federal felony.

Kelly, however, teaches a lesson beyond statutory interpretation and whether the Government carried its burden of proof.   Properly read, the case provides a warning against overexpansion of Federal criminal jurisdiction to regulate the conduct of elected officials.  As the court acknowledged, much of government involves regulatory choice, and Federal prosecutors may not use property fraud statutes to set the standards for good government.  Without question, this was a case about abuse of power.  But, as Justice Kagan persuasively stated, the Federal Government cannot “use criminal law to enforce (its view of) integrity in broad swaths of state and local policymaking.”  It seems that job belongs to the States and/or their electorates—something to keep in mind as we head into the next election cycle.

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