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.