WASHINGTON — It may have been the biggest traffic court case ever to be heard.
More than six years after the scheme of Jersey-style retribution that became known as Bridgegate caused massive traffic problems, the high-stakes corruption case had its day of reckoning Tuesday before the U.S. Supreme Court.
At least six of the nine justices appeared openly skeptical over whether the 2013 incident orchestrated by former officials of the Christie administration was a federal crime, as they peppered the government and defense attorneys with questions.
“I don’t see how this case works,” said Justice Stephen Breyer, in remarking that what happened at the bridge may not have been a good thing to do, but questioning if it was a crime.
Chief Justice John Roberts asked Eric J. Feigin, who argued the case for the Justice Department’s Office of the Solicitor General, how Bridgegate could be an issue of taking public resources for personal use, under the federal statute used to prosecute the case.
“Your theory is that by the actions in this case, they have commandeered the lanes on the expressway,” said Roberts. But he noted that, the lanes were “Still being used for public purposes,” and not for private use.
The case has national implications because if reversed, it could further limit the ability of federal prosecutors to prosecute public corruption.
Bridget Anne Kelly, 47, a former deputy chief of staff to Gov. Chris Christie, and Bill Baroni, 48, the one-time deputy executive director of the Port Authority of New York and New Jersey were found guilty in November 2016 of fraud and conspiracy, in connection with their roles in the closure of local access lanes from Fort Lee to the bridge. The plan was designed to back up traffic deep into the town to punish a local mayor.
Feigin told the court that Kelly and Baroni’s action in the case were fraud “in just the same way that it would be fraud for someone with no connection to the Port Authority to impersonate Port Authority supervisors and order Port Authority employees to realign Port Authority lanes.”
He said it was no different than someone pretending to be a taxicab company’s dispatcher and ordering the cabs and the drivers to go wherever the fraudster pleases.
“They don’t get a free pass simply because Baroni worked for the Port Authority when the evidence showed that he didn’t have the power to direct these resources in this way without telling the lie,” he told the justices. “And they don’t get a free pass simply because their motive happened to be political.”
However, Justice Samuel Alito, the only justice from New Jersey, suggested he was troubled by the government’s argument that Baroni was not authorized to make changes to the bridge access lanes.
“I’ve read these jury instructions several times. There’s nothing in there that would alert a jury, a juror, to the obligation to find that Baroni was unauthorized,” said Alito.
The court, meanwhile, raised issues of the defense as well.
“You’ve said that if the resources were diverted to private use, then the prosecution would be okay. But why isn’t it a private use to benefit defendants politically?” asked Justice Ruth Bader Ginsburg of Kelly’s attorney, Yaakov Roth.
He responded that while the allegation in the case was that the motive was political, that did not mean the reallocation of the bridge lanes was used for private benefit.
“It’s not,” Roth said. “the typical case in which the government has prosecuted property fraud against a public official is where the official lies to take property from the government for his own use.”
Roth said if a mayor orders a snow removal crew already plowing public roads to plow his street first, “that is not obtaining property by fraud because that is an allocation of resources to a public use.”
Justice Elena Kagan questioned that point.
“I’m sorry, I thought the scheme was to make life difficult for Fort Lee,” Kagan said to Roth. “If that was the scheme, and you defrauded the use of government property to accomplish your goal, why is that any different than taking the maintenance worker to plow your road, your private street?”
The attorney said that was not what the federal property fraud statute is concerned with.
“The federal property fraud statute is concerned with cheating the government out of its property rights. And that’s just not what we have here,” he said.
Kagan did not appear entirely convinced.
“My problem is I can see a headline that would say it’s okay for officials to use government public money in a way that is plainly unauthorized, not just in its motives but in its end use,” the justice said. Prosecutors argued that Kelly and Baroni wielded the George Washington Bridge like a cudgel, deliberately creating massive gridlock in the streets of Fort Lee around the approach to the bridge for no other purpose than to send a clear message to a mayor who wasn’t willing to play ball during the re-election campaign of Christie.
The idea to shut down the local access lanes at the George Washington Bridge was hatched after Fort Lee Mayor Mark Sokolich, a Democratic, backed off an expected endorsement of Christie, a Republican, during the governor’s 2013 re-election campaign.
The plan was conceived by David Wildstein, a political appointee to the Port Authority, who said he came up with of shutting down the bridge lanes to put pressure on Sokolich. It was then set in motion after Kelly sent a now-infamous “time for some traffic problems in Fort Lee” email to Wildstein. The message was later pointed to by prosecutors as the smoking gun in the case, and became a key piece of evidence used against her.
Kelly was sentenced to 13 months in federal prison. Baroni received an 18-month prison term. The two now are free on bail pending the court’s decision. Wildstein, who pleaded guilty to his role in the conspiracy, testified against the two and was sentenced to probation.
Christie was never charged with any wrongdoing and has steadfastly denied knowing about the plan.
Curiously, Christie himself was at the Supreme Court hearing on Tuesday, to the surprise of many, and sat just in front of Kelly with his wife, Mary Pat. He quickly disappeared after the arguments concluded.
The arguments before the high court on Tuesday did not focus on whether Kelly or Baroni participated in the traffic scheme. The question on the table was simply whether under the statute, a public official can defraud the government of its property by advancing a public policy reason for a decision that was “not her subjective real reason for making the decision.” In other words, if a pubic official lies about why they did something, are they defrauding the government?
The court in recent years has dealt prosecutors several major setbacks in the Justice Department’s sometimes aggressive approach to political prosecutions. Most notably was the court’s decision in the case of former Virginia Governor Robert McDonnell.
The Supreme Court in 2016 threw out the conviction of McDonnell on charges he accepted $175,000 in cash and gifts from a Richmond businessman while arranging meetings for him with state officials. The court ruled that the former governor’s activities on behalf of his patron were not considered “official acts,” and said despite the nature of the charges, prosecutors needed to show a direct quid pro quo — that the official did something in his official capacity in return for the gifts.
That very much was on the minds of the justices during the arguments, referring to the government’s claim of misusing Port Authority resources as “taking” the property of the government.
“There is no deprivation of honest services that does not require somebody in the government to spend some time or use some paper or use a telephone in order to achieve that dishonest thing,” observed Breyer. “If you’re going to count that as property, well, fine, you could do it, I guess under some statute, but if you do it under this statute, this statute then prohibits the taking of dishonest services, exactly what the court has held it doesn’t do.”
Bridget Anne Kelly and Bill Baroni embrace outside the Supreme Court after they talked to the media after their lawyers presented arguments. Lawyers for Bridget Anne Kelly and Bill Baroni will be making their final appeal before the US Supreme Court, seeking to overturn their convictions in the Bridgegate scandal. Tuesday, January 14, 2020. (Aristide Economopoulos | NJ Advance Media) Aristide Economopoulos | NJ Advance Media
Following the arguments, both Kelly and Baroni spoke briefly outside the Supreme Court.
“Today is about hope and about justice, said Kelly. "I remain optimistic that both triumph.”
Noting the presence of Christie in the courtroom, Kelly, who has not spoken to the governor since she was fired after the Bridgegate case broke, said only, “I hope he had a harder time seeing me than I did seeing him.”
Baroni, who did not answer questions, said he was “grateful” the justices were paying attention to his case. So unconvinced that the high court would take up the matter, Baroni had reported to federal prison before the justices agreed to hear his appeal.
“I never dreamed the Supreme Court would agree to hear our case,” he said.
Baroni’s attorney Michael Levy, after the oral arguments, commented that "there is a clear distinction between politics and crime,” but lines are being blurred. He said he was “optimistic” the court would reverse conviction.
Asked if he got any indication of which way the justices were leaning by their questions, Roth said only, “We don’t make predictions.”
READ THE SUPREME COURT’S ORAL ARGUMENT ON BRIDGEGATE
Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL. Facebook: @TedSherman.reporter. Find NJ.com on Facebook.
Jonathan D. Salant may be reached at jsalant@njadvancemedia.com. Follow him on Twitter @JDSalant or on Facebook. Find NJ.com Politics on Facebook.
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