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The Supreme Court Considers Political Lies in the Bridgegate Case

It’s time for the justices to stand up for truth, writes Brennan Center Fellow Ciara Torres-Spelliscy.

October 28, 2019
george washington bridge traffic
Drew Angerer/Getty

The Supreme Court has been siding with liars in recent cases.

Kelly v. United States, better known as “the Bridgeg­ate case,” goes before the Court this term and is another oppor­tun­ity to elev­ate the power to lie in polit­ics. But the Court does­n’t have to go down this path.

On Septem­ber 9, 2013, two of three access lanes from Fort Lee, New Jersey, to the George Wash­ing­ton Bridge were unex­pec­tedly closed during morn­ing rush hour. The clos­ures lasted for several days, snarling traffic in Fort Lee and caus­ing wide­spread delays during the first week of school. The traffic also caused work­ers at the Port Author­ity to work over­time at taxpayer expense.

Offi­cials initially said the lanes were closed for a traffic study, but the real reason turned out to be polit­ical revenge. Federal invest­ig­at­ors found that then-Gov. Chris Christie’s deputy chief of staff, Brid­get Anne Kelly, had worked with two Port Author­ity offi­cials, William Baroni and David Wild­stein, to close the lanes. They were retali­at­ing against the mayor of Fort Lee, who had not endorsed Christie for reelec­tion.

Wild­stein pleaded guilty in the plot and cooper­ated with federal prosec­utors. In 2016, Baroni and Kelly were found guilty by a jury on conspir­acy, fraud, and other charges and sentenced to 24 months and 18 months, respect­ively. They appealed to the Third Circuit Court of Appeals, which affirmed most of the charges, ruling that Baroni and Kelly had defrauded the Port Author­ity of its prop­erty — the toll­booth lanes and the cost of employee labor — by lying about the reason for the lane real­loc­a­tion.

Kelly took her case to the Supreme Court. The ques­tion the Court is consid­er­ing is “whether a public offi­cial defrauds the govern­ment of its prop­erty by advan­cing a public policy reason for an offi­cial decision that is not her subject­ive real reason for making the decision.” In other words, the Supreme Court is consid­er­ing whether Kelly can get away with lying about why the bridge was really closed.

I fully expect that the Supreme Court will exon­er­ate Kelly for her actions. It could build on United States v. Alvarez, a 2012 case in which the Court inval­id­ated a federal law against lying about congres­sional and milit­ary honors. The Court ruled that the Stolen Valor Act viol­ated the First Amend­ment right of Xavier Alvarez, an elec­ted member of a water district board in Cali­for­nia, to lie about earn­ing the Medal of Honor. Alvarez, taken to its logical extreme, could excuse Kelly’s lying too.

Altern­at­ively, the Supreme Court could actu­ally hold Kelly respons­ible for her actions. This is a long shot. However, in Depart­ment of Commerce v. New York, a 2019 case about whether the Commerce Depart­ment could add a citizen­ship ques­tion to the 2020 census, the Court held that it could not because the reason the admin­is­tra­tion gave for adding the ques­tion “appear[ed] to have been contrived.”

Offi­cials from the Depart­ment of Commerce had argued that the citizen­ship ques­tion would help them to enforce the Voting Rights Act. This excuse was laugh­able for many reas­ons. The last time the census included any kind of ques­tion about citizen­ship was before the Voting Rights Act came into effect. As long as the Voting Rights Act has been in exist­ence, the census has not been used in this way to enforce it.

What’s more, under the Trump admin­is­tra­tion, the Depart­ment of Justice has consist­ently taken posi­tions adverse to enfor­cing the Voting Rights Act in day-to-day prosec­utorial choices and in ongo­ing litig­a­tion. As Justice Sonia Soto­mayor said during oral argu­ment, the Commerce Depart­ment was shop­ping for a reason to add the citizen­ship ques­tion when it landed on the Voting Rights Act ruse. 

In the end, the Supreme Court decided that, under the Admin­is­trat­ive Proced­ures Act, the Commerce Depart­ment was not allowed to provide the public a pretextual reason for adding the citizen­ship ques­tion. If the Court chooses to apply the logic of Depart­ment of Commerce v. New York to Kelly’s case, then it may rule that she too is not allowed to give a pretextual reason (the bogus traffic study) for clos­ing the lanes on the George Wash­ing­ton Bridge.

I, for one, hope the justices come down on the side of truth. If the govern­ment is to be account­able to the public for its actions, then citizens must be able to know what offi­cials are doing and why they are doing it.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.