As of May 29, President Trump has made 19,127 false or misleading statements since he took office, according to the Washington Post. But these lies are unlikely to lead to prosecutions given the Supreme Court’s unanimous decision last month in Kelly v. United States, better known as “the Bridgegate case.”
In 2013, then-New Jersey Gov. Chris Christie’s deputy chief of staff Bridget Anne Kelly worked with Port Authority officials to close two of three access lanes from Fort Lee to the George Washington Bridge. Kelly and her accomplices enacted the closures — which caused major traffic jams during the first week of the school year and led Port Authority workers to work overtime at taxpayer expense — to retaliate against the mayor of Fort Lee for failing to endorse Christie during his reelection bid. They lied about the lane closures, claiming they were merely for a “traffic study.” The ensuing political scandal became known as Bridgegate.
Kelly and her co-defendant William Baroni, a Port Authority official, were convicted of federal fraud for essentially commandeering a public bridge for their own private benefit. They appealed the decision and took their case all the way to the Supreme Court.
In “An Elegy for Anti-Corruption Law,” which I wrote for the American University Law Review, I argued that Kelly v. United States presented the Supreme Court with the excuse to double down on two different trends: expanding the right to lie and making corruption harder to prosecute. Unsurprisingly, in its decision last month, the Court did both. Specifically, the Supreme Court ruled for Kelly and her co-defendant Baroni to be exonerated, concluding that “not every corrupt act by state or local officials is a federal crime.”
However, Justice Elena Kagan’s opinion for the unanimous decision makes it clear that Kelly’s “traffic study” ruse didn’t fool her. For example, on the opening page of the Kelly opinion, Kagan writes, “The public officials [Kelly and Baroni] who ordered that change claimed they were reducing the number of dedicated lanes to conduct a traffic study. In fact, they did so for a political reason—to punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid.”
Later in the opinion, Kagan refers to the lane closures as a “scheme” multiple times and as a “sham.” She noted that Kelly and Baroni “merrily kept the lane realignment in place for another three days” and did so by “resorting to lies.”
So, if Justice Kagan and the rest of the Supreme Court didn’t believe the traffic study ruse, why did they let Kelly and Baroni off the hook for their lies to the taxpaying public? A core issue for the Court revolves around what counts as “property” under the federal fraud statutes. The Supreme Court decided that changing the lanes on the George Washington Bridge was merely an action of regulatory power and not a commandeering of public property for a private use.
Moreover, the Supreme Court seemed particularly worried about federal fraud statutes being used in expansive ways against state or local officials. Justice Kagan writes, “[i]f 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 … a sweeping expansion of federal criminal jurisdiction.” In so ruling in Kelly, the Supreme Court expanded on the case which threw out part of the conviction of ex-CEO of Enron Jeffrey Skilling for honest services fraud.
To the glee of corrupt politicians, the Supreme Court’s ruling in the Bridgegate case will ultimately make it harder, if not impossible, to use federal fraud statutes against fraudulent officials.
What can still be done to prevent elected and appointed politicians from lying or corruption? The Supreme Court leaves this door slightly ajar: “The upshot is that federal fraud law leaves much public corruption to the States (or their electorates) to rectify.” In other words, in the 27 states that allow direct democracy, stricter anti-corruption laws are possible through ballot initiatives or referenda, while residents in the other states would have to urge state lawmakers to enact new legislation.
In Kelly, the Supreme Court was worried about federal prosecutors going after corruption at the state level. However, the court does not express an opinion on whether state prosecutors can still go after federal officials for breaking state laws. That issue may be resolved in a pending Supreme Court suit called Trump v. Vance, which considers the prosecutorial power of Manhattan District Attorney Cyrus R. Vance Jr. in his attempt to subpoena records from President Trump. Depending on the outcome, it may still be possible to prosecute for certain frauds — but it would require action from state and local prosecutors.
The views expressed are the author’s own and not necessarily those of the Brennan Center.