They say that while the conduct alleged may have been uncouth, it was not illegal, and declaring it so would criminalize routine political dealings.
The Justice Department counters that Kelly and Baroni are misstating what occurred and that the evidence was sufficient to support their convictions.
The questioning Tuesday did not break down neatly along traditional ideological lines, and it was difficult to predict what the ultimate decision might be. Some justices who asked questions of the attorneys for Baroni and Kelly also seemed critical of some of the government’s points.
Christie sat one row in front of Kelly, who has blamed the former governor for making her a scapegoat in the scandal.
“He couldn’t even look me in the eye. He ruined my life,” Kelly said in an interview after the hearing. “He took away my job, my health insurance, everything. But I’m still standing. . . . I wasn’t going to go down without a fight, and look at where we are.”
By prosecutors’ account, Baroni and Kelly schemed in 2013 to change the traffic flow on the George Washington Bridge — which spans the Hudson River to connect northern New Jersey and Manhattan — so that vehicles would back up into Fort Lee, N.J., where the mayor had declined to endorse Christie.
At the time, Kelly was Christie’s deputy chief of staff, and Baroni was the deputy executive director of the Port Authority of New York and New Jersey. The pair fabricated a traffic study, prosecutors said, and — without warning to Fort Lee — took three lanes devoted to local traffic down to one, creating extensive gridlock. Both were convicted; Baroni was ultimately sentenced to 18 months in prison, Kelly to 13.
Though Christie was never charged in the case, prosecutors alleged he knew about the plot, and a key witness who admitted his role in the affair testified that Christie laughed when informed.
The scandal largely dashed Christie’s national political ambitions, though he has denied having knowledge of the scheme.
In filings to the Supreme Court, Kelly and Baroni argued that — even if they did exactly what prosecutors allege — it could not constitute a federal crime. They argued that they were essentially convicted of lying about their true political motive for a decision.
Under that reasoning, defense attorneys argued in the filings, a mayor who sent snowplows to the neighborhood of a political donor could be charged with a crime. Or, when a court found that the Trump administration gave a specious rationale for its decision to add a citizenship question to the census, it would not just have jeopardized that policy decision but also put administration officials at risk of being charged criminally.
The Justice Department shot back that Kelly and Baroni lied about the traffic study so they could commandeer Port Authority resources. Specifically, the department argued, the pair cheated the Port Authority out of the thousands of dollars it paid to toll workers who would not have been working but for the scheme.
Several justices seemed focused on the issue of whether Baroni, as deputy director of the Port Authority, had the authority to order the traffic realignment. Deputy Solicitor General Eric Feigin conceded that the convictions hinged upon Kelly and Baroni acting outside the scope of their power and needing to commit fraud to execute their scheme.
He compared Kelly and Baroni to people who impersonate Port Authority supervisors.
“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,” Feigin said.
In pressing Baroni’s lawyer, Justice Sonia Sotomayor noted that David Wildstein, another Port Authority official and government witness in the case, had testified about having to lie to Port Authority employees to put the plan in motion, and that it seemed Baroni at least needed the “acquiescence” of the Port Authority executive director. Did that, she asked, not indicate Baroni lacked authority?
Michael Levy, Baroni’s lawyer, said it did not. He said Baroni was essentially a deputy in name only though he had power equal to that of the executive director.
His argument found some sympathy among the justices.
Justice Samuel A. Alito Jr. said he saw “no indication whatsoever” that the jury found Baroni lacked the authority to order the change in traffic patterns. Justice Stephen G. Breyer, who seemed perhaps the most skeptical of the government’s case, noted that the defense wanted jurors to be instructed that officials could not be convicted if they were acting within their authority, but that a lower court declined to do so. Feigin said such an instruction might have been confusing.
Yaakov M. Roth, an attorney for Kelly, argued that Kelly and Baroni had simply “reallocated the traffic lanes from one public use to another,” so it was specious to suggest they had defrauded the government of its property. He said the two had made a regulatory decision, not cheated the government for personal benefit.
Several justices seemed skeptical of portions of his argument.
Justice Ruth Bader Ginsburg asked how use of the lanes could be considered public, when the realignment was meant to benefit Kelly and Baroni’s political interests. Sotomayor said that, if she sided with Roth, she could “see a headline that would say it’s okay for officials to use government public money in a way that is plainly unauthorized.”
Justice Elena Kagan asked whether Kelly and Baroni could have been charged if they had ordered the realignment to improve their own commutes. But Chief Justice John G. Roberts Jr. and Kagan also pressed the government on whether Kelly and Baroni had actually obtained property — noting that their goal was not to use toll workers.
“Wasn’t the commandeering here completely incidental, indeed unnecessary to the scheme being carried out?” Kagan asked.
Feigin said it was not. “Would you still have a case here?” he was asked separately by Sotomayor regarding whether Kelly and Baroni had induced traffic as they sought. Feigin said he would.
“Although the effect was catastrophic and that was a reason why the prosecution was brought . . . they would still have committed the same crime,” he said.
The Supreme Court has in the past decade steadily narrowed the definition of what constitutes public corruption and could do so again in the Bridgegate case. Breyer referenced those previous decisions more than once, suggesting prosecutors’ theory of the Bridgegate case seemed to be ignoring the Supreme Court precedent.
In 2010, the court significantly dialed back the “honest services fraud” statute in weighing the case against former Enron chief executive Jeffrey Skilling — deciding that public corruption cases must involve bribes or kickbacks, rather than just self-dealing.