The George Washington Bridge is pictured. | AP Photo

The George Washington Bridge | AP Photo

Corruption case law in jeopardy as Supreme Court hears 'Bridgegate'

Six years ago last week, a cache of messages exchanged between several allies of then-New Jersey Gov. Chris Christie landed in the inboxes of reporters who had been looking into a series of strange, traffic-snarling lane closures that occurred four months earlier at the George Washington Bridge.

The documents — including the smoking gun email, “Time for some traffic problems in Fort Lee” — blew up claims the incident was anything but what it seemed: an effort to punish a mayor who refused to endorse Christie’s reelection campaign, and one the perpetrators went to extraordinary lengths to cover up.

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More than half a decade later, with Christie’s career felled by the ensuing scandal and his allies still facing time in prison, the surreal, only-in-Jersey conspiracy will now be fodder for the nation’s highest court, offering a fresh test of where dirty politics ends and criminal corruption begins.

The U.S. Supreme Court, set to hear arguments in the case Tuesday morning, must mull over the validity of a core underpinning of the case: That the defendants misapplied public property and, in doing so, committed fraud.

The “Bridgegate” case gives the court an opening to further limit public corruption prosecutions. It follows the court’s 2016 ruling that vacated the conviction of former Virginia Gov. Bob McDonnell — and helped others, like former New York Assembly Speaker Sheldon Silver, do the same.

The decision in this case, expected in the spring or early summer, could leave U.S. attorneys with one fewer tool in which to target unethical public officials and may renew calls for Congress to shore up the country’s laws on political conduct.

“The Supreme Court has had growing concerns of prosecutors — federal prosecutors — criminalizing politics,” said Michael Weinstein, the chair of Cole Schotz’ white collar and government investigations practice. “The Supreme Court has taken it on, and narrowed the scope and breath of public corruption-type cases, and really tied the hands of prosecutors. And this case, as presented, is attempting to do the same thing.”

The two former Christie allies who are appealing their convictions — Bridget Anne Kelly, who was Christie’s deputy chief of staff, and Bill Baroni, who was deputy executive director at the Port Authority of New York and New Jersey — say a ruling in favor of the government would criminalize “routine” politics. They say what they did, no matter how sinister it seems, “is a case of bare-knuckle New Jersey politics, not graft.”

For the court to side with the government, Kelly and Baroni argue, it would mean a local official who bases snow removal decisions on politics, then lies to conceal the political motivations behind the decision, would have committed a federal crime under the government’s theory.

The same legal theory, writes Yaakov Roth, Kelly’s lead attorney, could be applied to Commerce Secretary Wilbur Ross’ decision to include a citizenship question on the 2020 census. The Supreme Court blocked that decision, Roth writes, “on the ground that his ‘stated reason’ for the decision ‘seems to have been contrived.’”

If the Bridgegate case stands, he writes, “the Commerce Secretary would not merely have his decision be set aside.”

“He would also be imprisoned for fraud,” says Roth, who was on the legal team that defended McDonnell. “Whatever the proper bounds of judicial review as a matter of administrative law, that astoundingly expansive theory of criminal fraud cannot be correct. It would undo, in one fell swoop, three decades of this Court’s precedents rejecting attempts to enforce ‘honest government’ through vague federal criminal statutes.”

Baroni’s legal team, led by Michael Levy, says virtually any action taken by a public official with “concealed political motive” would be a crime under the theory upon which their case rests.

“[I]f that is correct, every current or future public official serves with the Sword of Damocles dangling overhead, because the federal government will now have free rein to charge and convict officials for all manner of political deals, favors, and rebukes, unless those officials are brutally candid about their true political motivations. If the government prevails, ‘the room where it happens’ will become a crime scene,” Levy writes, quote the musical “Hamilton.”

Baroni, who was also a lawyer and former Republican state lawmaker, and Kelly, who was a long-time legislative aide before working for Christie, were convicted in 2016. They worked with a third conspirator — David Wildstein, a former Port Authority of New York and New Jersey official who pleaded guilty and testified against them — to orchestrate the political retribution scheme.

Over the course of several days in September 2013, the three closed off two local access lanes to the George Washington Bridge during the morning commute, clogging roads for hours in the densely populated Bergen County, N.J., town of Fort Lee.

Wildstein, who received probation and now runs a political news site in New Jersey, said the stunt was designed to punish Fort Lee‘s Democratic mayor for refusing to endorse Christie's reelection campaign. Kelly’s “time for some traffic problems” email, sent to Wildstein, was the directive that set their plot in motion. They used the cover of a “traffic study” to hide the real reason for lane shifts.

The Third Circuit Court of Appeals in Philadelphia already upheld the convictions, though it tossed out one count involving violations of civil rights.

Baroni had already begun serving his 18-month prison sentence, and Kelly was set to begin serving her 13-month term when the Supreme Court agreed to hear the appeal.

The Justice Department, led by acting solicitor general Jeffrey Wall, says not one facet of Kelly and Baroni’s legal arguments holds water. The main problem with the appeal, the government lawyers write in their brief to the court, is that neither Baroni, Kelly nor Wildstein had the authority to implement the lane closures without lying to do so.

The trio used the fiction of a traffic study to take “control of the Port Authority resources necessary to realign the lanes and gridlock Fort Lee,” the government writes. And Wildstein claimed at one point that the executive director of the Port Authority — a man who was appointed by the governor of New York — was aware of the traffic study.

“[T]he evidence established that Kelly and Baroni did not have the authority to decide when it was permissible to reduce the local access lanes,” Wall and other government attorneys write. “To the contrary, it showed that the conspirators could realign the lanes only by lying about the existence of a traffic study, and about the Executive Director’s knowledge of the fictional study.”

In dismissing the warnings about endless public corruption cases that could ensue if the conviction stands, the government says that might be true if they were actually in a real position of authority.

“If Kelly and Baroni had been convicted on a record that showed that Baroni was actually empowered to reduce the number of local-access lanes without a traffic study, or if a traffic study really existed, then their concerns about potentially ‘criminalizing large swaths of routine politics,’ … would be relevant,” Wall writes.

That the Supreme Court would even take this case suggests some of the justices may be interested in overturning the convictions and curtailing the way in which prosecutors pressed the charges, legal experts say.

Anti-corruption watchdogs say they’re worried about the outcome.

“We all see where this is going, which is to further rein in the ability of prosecutors” to go after political misconduct, said Daniel Weiner, the deputy director of the election reform program for the Brennan Center, who believes the court is “playing with fire” when it comes such public corruption laws.

“The court has adopted increasingly and even constitutionalized this profoundly cynical view of politics,” he said, also expanding that view to include cases like Citizens United. “I think it’s fair to say has had a pretty corrosive effect on our public discourse.”

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