The 2013 “Bridgegate” scandal, in which appointees of New Jersey Governor Chris Christie closed two lanes of the George Washington Bridge entry ramp to exact revenge against a political opponent, may now seem rather quaint in comparison with a presidential impeachment, eight Trump associates convicted of crimes, and Russia’s interference in the 2016 and 2020 elections.
But the case argued today at the Supreme Court could have far-reaching consequences for how corrupt politicians–including those in the Trump administration–are held accountable for their actions.
And judging from today’s oral argument, which Christie himself attended, the news is bad for advocates of good government.
The case, Kelly v. U.S., is being brought by two of Christie’s former henchmen, Bridget Anne Kelly and William Baroni. Both were found guilty of fraud and sentenced to 13 and 18 months in prison, respectively.
Today, their lawyers told the Supreme Court that if hacks can be prosecuted every time they lie for political reasons, all of them would end up in jail. They claim that while Kelly and Baroni’s conduct was “petty, sensitive, and ill-advised,” it can’t possibly be criminal fraud, because they didn’t technically deprive the government of any property and because doling out favors (or, in this case, disfavors) for political reasons happens all the time.
Judging by today’s oral arguments, a majority of the Court seemed to agree.
“I don’t see how this case works,” said Justice Stephen Breyer. Chief Justice John Roberts agreed, noting that while the bridge lanes were closed, they were still being used for a public purpose, albeit a bogus one.
If a majority of the Court follows this reasoning, Kelly could be another major blow against holding politicians accountable for their corrupt activities.
In 2016, the Court unanimously tossed out bribery charges against former Virginia Governor Robert McDonnell, who had accepted $175,000-worth of loans and gifts (including vacations, designer clothes, a Ferrari, and a Rolex watch) from the maker of a dietary supplement.
In particular, the Court’s opinion, written by Chief Justice Roberts, was focused on the “broader legal implications of the Government’s boundless interpretation of the federal bribery statute.” If McConnell could be found guilty of bribery, Chief Justice Roberts worried, “officials might wonder whether they could respond to even the most commonplace requests for assistance.”
Commentators were surprised both by that decision and by its unanimity. If a Rolex and a Ferrari aren’t a bribe, what is?
Advocates for good government–and, perhaps surprisingly, the Trump administration–had hoped that Kelly would provide an answer. One of the problems in the McDonnell case is that the governor didn’t really do anything. Yes, he took the gifts, but in exchange, all the businessman got were some meetings and phone calls. That’s business as usual–not pretty, but not criminal either.
Kelly and Baroni, however, did a lot more than that. They commissioned a phony traffic study, knowing full well that it was totally bogus. They cost the Port Authority $2,000 for the fake study and $5,400 for an extra toll collector. They sent messages to one another like “Time for some traffic problems in Fort Lee” and “"Is it wrong that I'm smiling?"
And unlike McDonnell, who had the power to arrange meetings as he saw fit, Kelly and Baroni didn’t have the power to close the bridge on their own, which is why they had to conduct the fake traffic study in the first place.
And they baldly lied, the government’s lawyer told the Court. “They don't get a free pass because their motives were political.”
Yet Justices Stephen Breyer, Samuel Alito, Elena Kagan, Sonia Sotomayor, and Chief Justice Roberts all expressed skepticism that politicians should be held criminally accountable for such actions because they themselves didn’t get anything.
“Property isn't obtained when it is simply wasted,” said Justice Alito at one point.
Alito’s point is clear: for criminal fraud to have been committed, the criminal must obtain some property. Here, no property was actually “obtained” by anyone, since Baroni and Kelly didn’t personally get anything from the fraudulent lane closure.
“You can certainly cheat the government out of its property,” Kelly’s lawyer, Jacob Roth, noted. But when you don’t get any of it yourself, you haven’t committed fraud.
Even the liberal-leaning Justice Kagan agreed with this point, saying “the object of this deception was not to obtain property. The object was to create a traffic jam. The object was to benefit people politically. You can frame the object in lots of ways. But notwithstanding that some employee time was given over to this scheme, that was not the object of the scheme.”
With this broad ideological agreement, it looks certain that Baroni and Kelly will prevail.
After all, there are other remedies for corrupt political actions. For example, last year, the Supreme Court found that Commerce Secretary Wilbur Ross violated the Administrative Procedure Act by lying about the reasons for adding a citizenship question to the U.S. Census. As a result, the question was thrown out.
And in the case of Bridgegate, it’s generally acknowledged that the scandal cost Chris Christie his political career. Christie was once a leading contender to be the 45th president of the United States. After Bridgegate, his poll numbers never recovered.
This point was made forcefully by Roth at the oral argument. “We have certainly political remedies [for misconduct] that were very much--had pretty substantial repercussions here.”
Ironically, Christie paying for Bridgegate with his political career suggests that political consequences are enough to deter conduct like Baroni’s and Kelly’s.
We’ll see if the same is true for Donald Trump.