Accusations about public corruption and allegations that our public officials are deceiving us dominate the daily news. Now the Supreme Court is set to tackle an important question about when and whether public officials defraud the government of its “property” when they lie about the real reasons behind official decisions.
This case was born out of the so-called Bridgegate scandal of 2013. Let’s take a stroll down memory lane, or at least down the George Washington Bridge.
The case was born out of the so-called Bridgegate scandal of 2013, when Chris Christie was governor of New Jersey. Let’s take a stroll down memory lane, or at least down the George Washington Bridge, the busiest bridge in the world. In September 2013, the first day of school for many families, David Wildstein, a staffer at the Port Authority of New York and New Jersey, implemented a plan to partly shut down the bridge, causing enormous gridlock for drivers, particularly those trying to leave Fort Lee, New Jersey. The decision was retaliation against Mark Sokolich, the Democratic mayor of Fort Lee, who didn’t endorse Christie’s re-election campaign.
And now for a complicated game of who might have acted to defraud the American people. Wildstein worked for Bill Baroni, whom Christie appointed deputy executive director of the Port Authority. Bridget Anne Kelly was Christie’s deputy chief of staff. When Wildstein told Kelly that the Port Authority could shut down part of the George Washington Bridge, Kelly famously responded, “Time for some traffic problems in Fort Lee.”
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But Wildstein, Baroni and Kelly lied to Port Authority employees and said they were shutting down lanes on the bridge for a last-minute traffic study. The phony study ended up costing the Port Authority more than $5,000. After a few days, all three officials lost their jobs. Wildstein served probation on two charges of conspiracy.
The charges against Baroni and Kelly lead us to the Supreme Court. Baroni and Kelly were sentenced to federal prison for their convictions for violating federal statutes prohibiting wire fraud and fraud in federally funded programs (like the Port Authority). The question is whether they truly violated those statutes.
The U.S. 3rd Circuit Court of Appeals upheld most of the finding of the trial court and found that Baroni and Kelly had violated federal laws related to wire fraud and fraud in federally funded programs. First, the pair lied about why they were partly shutting down the bridge. Second, those lies “took property” from the Port Authority by forcing the agency to pay employees to conduct the traffic study. Essentially, the district court and the court of appeals concluded that government property was taken because the Port Authority had to use the time and salaries of government employees to conduct the study.
Baroni and Kelly have now come, hats in hands, to the Supreme Court, hoping the court will disagree with both courts and overturn their convictions. They argue that upholding their convictions would mean that any time public officials lie about decisions they have the authority to make, they could be criminally liable for fraud.
The federal government counters that Baroni and Kelly hatched a fake story about conducting a traffic study because they didn’t otherwise have the power and authority to partly shut down the bridge. The government contrasts this to a situation in which an official has the power and authority to do something but gives another reason for an otherwise legal action.
The legal authority to direct resources to fix potholes is there. But Baroni and Kelly didn’t have the legal authority to partly shut down the bridge.
For instance, imagine that a City Council member makes sure that potholes are fixed in part of a district where there are lots of voters. The council member could claim that, while the repairs would likely endear him or her to voters, infrastructure upkeep is also part of the job. The legal authority to direct resources to fix potholes is there. But Baroni and Kelly didn’t have the legal authority to partly shut down the George Washington Bridge — without concocting a fake story about a traffic study.
There is also a secondary argument. Baroni and Kelly claim that they didn’t deprive the government of property because no property interest was at issue. The “property” in this case isn’t physical property but the labor of public employees.
The Supreme Court is hearing oral arguments on Tuesday. Its decision — which will likely happen in late June — will have implications far beyond Baroni and Kelly and will likely help to define when public officials can be charged with public corruption.
The court shouldn’t give credence to Baroni’s and Kelly’s argument that the government is just trying to criminalize people who lie about political motivations. The case shouldn’t be used to limit the tools prosecutors have to charge public officials who engage in fraudulent behavior. And this isn’t the moment to eliminate one of the ways the federal government can protect Americans against officials who concoct political revenge schemes.
But one thing to remember — this isn’t a constitutional case. If Congress doesn’t like the outcome, it can change the federal fraud statutes.