Kelly v. United States, a case about the scandal known as Bridgegate, is bringing together two troubling lines of precedent at the Supreme Court this term: the ever-escalating right to lie and the ever-shrinking definition of corruption.
Officials working with then-New Jersey Gov. Chris Christie closed access lanes to the George Washington Bridge — purposely causing gridlock traffic in the process — to punish the mayor of Fort Lee for not endorsing Christie for reelection. They then lied to the public, claiming that the bridge lane closures were merely part of a traffic study by the Port Authority of New York and New Jersey, which runs the bridge. They were convicted in federal court on charges stemming from the episode, including conspiracy and fraud.
Now former Deputy Chief of Staff Bridget Anne Kelly and former Port Authority Deputy Executive Director Bill Baroni are challenging their convictions at the Supreme Court, arguing that their lies do not fit the federal statutes under which they were convicted.
On January 14, 2020 the Supreme Court heard oral argument in the case, and it did not go well for the U.S. government. Deputy Solicitor General Eric J. Feigin argued that “the defendants in this case committed fraud by telling a lie to take control over the physical access lanes to the George Washington Bridge and the employee resources necessary to realign them.”
Meanwhile, Kelly’s attorney Jacob Roth repeatedly argued that “the [federal] fraud statutes do not prohibit lying to take unauthorized state action. They prohibit lying to obtain property. And that simply is not what occurred in this case.” Baroni’s attorney Michael Levy echoed Roth’s argument, stating that “a public official who is acting politically and not for personal gain does not commit fraud by lying about his reason for an official decision if the decision was generally within his authority.”
The majority of the justices seemed to accept the assertion that there was a serious problem with charging Baroni and Kelly with taking government property by lying about a traffic study. The justices appeared to get stuck in a rhetorical tarpit mulling over exactly what type of fraud, if any, Baroni and Kelly had committed, and over whether there was sufficient property at issue. One allegation in the case is that the lane closures cost taxpayers the overtime that was paid to Port Authority employees who had to cope with the ensuing traffic and chaos.
In response, Feigin argued that Kelly and Baroni’s lawyers were “trying to lump a bunch of different kinds of frauds together and make them all sound as if they’re the same. This case is about a very specific kind of fraud, commandeering fraud. It is when the defendant tries to take over property that is in the hands of the victim and manage it as if it is his own property. That’s what they were doing with the lanes on the bridge and the employee resources.” This line of reasoning, however, did not seem to persuade the justices.
Feigin also noted that lying was integral to Kelly and Baroni’s lane-closing scheme. But most of the justices did not endorse the idea that it was a federal crime to lie during government service. Justice Stephen Breyer mused, “My goodness, the Code of Federal Regulations, the rules of any . . . government is filled with rules. And there are numerous instances where a person might say something untrue about something related to a rule that gives him authority.”
And even though the prosecutors had proved at trial that there was not a real traffic study on the George Washington Bridge, Chief Justice John Roberts chimed in unprompted that the fact was “disputed.” So, if oral argument is any indication, the Supreme Court seems poised to exonerate Kelly and Baroni.
Bridgegate is shaping up to be a redux of a 2015 case in which the Supreme Court let former Virginia Gov. Bob McDonnell off the hook for accepting money and gifts from a businessman eager to sell state employees tobacco pills.
This is bad news for Supreme Court watchers who hoped that the Court might tap the brakes on the ever-expanding First Amendment right to lie, especially in the context of governmental service to the public. Bridgegate is shaping up to become one more case in which the Court throws its arms around the mendacious and says, “Here’s your get-out-of-jail-free card.”
The views expressed are the author’s own and not necessarily those of the Brennan Center.