“Bridgegate” began in September 2013 when officials at the Port Authority of New York and New Jersey closed two inbound lanes on the George Washington Bridge, causing several days of massive traffic gridlock in Fort Lee, N.J. They claimed they were conducting a traffic study, but the real goal was to punish the Democratic mayor of Fort Lee for refusing to endorse then-Republican Gov. Chris Christie for reelection. In a now-infamous email implementing the scheme, Bridget Anne Kelly, an official in Christie’s administration, wrote, “Time for some traffic problems in Fort Lee.”
The resulting scandal effectively torpedoed Christie’s political career. But for some in Christie’s administration, the consequences were not merely political. Federal prosecutors charged Kelly and Port Authority official William Baroni under federal fraud laws. They were convicted and sentenced to prison.
Under long-standing Supreme Court precedents, it wasn’t enough for prosecutors simply to show that Baroni and Kelly had engaged in political misconduct. To convict the defendants of fraud, prosecutors had to prove they engaged in a scheme to obtain money or property from the “victim,” the Port Authority. It was clear the defendants had not personally profited from their political hit job. But prosecutors had two different theories concerning how they nevertheless had obtained the Port Authority’s property. The first was that, through their scheme, the defendants had “commandeered” the bridge lanes for their own use. The second theory was that the defendants had deprived the Port Authority of the salaries of the employees who moved traffic cones, staffed the toll booths and otherwise carried out the scheme.
In an opinion by Justice Elena Kagan, the court swiftly dispatched both arguments. As for the bridge lanes, the court held the defendants did not “commandeer” them, at least in any normal sense of the word. They obviously did not walk off with the lanes, nor did they somehow convert the lanes to their private use. The public continued to use the bridge, and the Port Authority continued to control it and collect the tolls; the defendants merely changed the allocations of the lanes as between different groups of drivers. This was a textbook regulatory decision, allocating scarce government resources. Even if, as here, such regulatory power is exercised or interfered with for a bad reason, that alone does not deprive the government of property. The government interest at stake is that of a regulatory sovereign, not a property owner.
The court similarly rejected the government’s theory concerning the salaries of the Port Authority employees. This was not a case, the court noted, where officials had conscripted public employees to perform private work for them such as renovating their own home or working on a political campaign. In such a case, obtaining public employees’ labor for private use is indeed the object of the fraud. But in this case, the Port Authority employees were still doing Port Authority work, moving cones and collecting tolls. The object of the defendant’s scheme was not to obtain their labor — it was to create a traffic jam and inflict political punishment. Any salary payments were not obtained by the defendants and were merely incidental effects of their scheme. But fraud, the court noted, requires that obtaining property be the object of the scheme itself.
The court observed that the government’s theory, if adopted, would have breathtaking consequences. Virtually every regulatory decision requires some employee labor to implement. Whenever a politician lied about the true reason for some decision (a not-uncommon occurrence), federal prosecutors could charge fraud based on the salaries paid to employees who carried it out. This would give prosecutors sweeping powers to use federal criminal law to enforce their own views of good government for state and local officials, even in the absence of core corruption such as bribery. That’s something the court has consistently — and rightly — repudiated.
The behavior of the Bridgegate defendants was reprehensible. They deserved to lose their jobs, be publicly disgraced and perhaps even be sued by anyone injured as a result of their scheme. Their boss, Christie, surely deserved the political consequences he suffered. But as the court concluded, “not every corrupt act by state or local officials is a federal crime.” If criminal corruption laws sweep too broadly, it enhances the risk of prosecution being used as a political weapon.
There’s often a tendency these days to reach immediately for criminal remedies for political misdeeds. The court’s decision is a welcome reminder that criminal law is not always the answer.