Kelly v. United States

No. 18-1059 - Argued January 14, 2020

At Issue

Whether a public official “defrauds” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision.

Advocates

Jacob M. Roth, for the petitioner
Michael Levy, for respondent William Baroni, supporting the petitioner
Eric J. Feigin, for the respondent

Background and Case Commentary

Kelly v. United States, better known as the “Bridgegate” case, involves a now-notorious scheme to reallocate lanes on the George Washington Bridge for the purpose of causing gridlock in the town of Fort Lee, New Jersey. The two defendants below, former state officials Bridget Kelly and Bill Baroni, executed the scheme after Fort Lee’s mayor declined to support then-Governor Chris Christie’s reelection efforts. Both Baroni and Kelly were convicted, as relevant, of wire fraud, federal-program fraud, and conspiracy to commit both types of fraud.

At the outset and throughout the oral argument, Deputy Solicitor General Eric Feigin could have been more responsive to Kelly’s attorney, Jacob Roth, on two key matters. The first regards framing. In presenting Kelly’s case, Roth told the justices that “the government is trying to use the open-ended federal fraud statutes to enforce honest government at the state and local levels,” (Tr. 00:06) and went on to argue that the government’s theory “turns the integrity of every official action at every level of government into a potential federal fraud investigation.” (Tr. 00:17)

When his turn at the lectern came, Feigin focused on the defendants’ lies (Kelly and Baroni had invented a traffic study to get Port Authority employees to implement their lane realignment). He began: “The defendants in this case committed fraud by telling a lie to take control over the physical access lanes to the George Washington Bridge and the employee resources necessary to realign them. Unless they lied about the existence of a Port Authority traffic study, none of them had the power to direct those resources and realign those lanes.” (Tr. 27:53)

Both the lies and the defendants’ lack of authority to direct the realignment were important elements of the government’s theory, so Feigin was right to focus on those. But he missed an opportunity, right at the outset, to respond to Roth’s broader articulation of what’s at stake. He might have said something like this: “The defendants have turned the core question in this case on its head. It is not whether this Court should allow for the criminalization of ordinary politics; of course it should not. It is whether this Court will declare that the conduct of politics happens entirely beyond the reach of the federal criminal law. Nothing in our tradition supports that extreme claim; rather, both congressional judgments and this Court’s cases make clear that fraud committed by government officials can still be fraud. All this case requires the Court to do is to affirm that commonsense proposition.”

The second, general point that Feigin could have refuted more strongly was Roth’s suggestion, at a number of points in the argument, that questions of motive lie at the heart of the case. Roth allowed that “We don’t want public officials acting for personal reasons. We don’t want them acting necessarily for partisan or political reasons.” (Tr. 16:09) But he also argued that “the remedy for that is not the federal property fraud statutes.” (Tr. 16:19)

Feigin also should have responded directly to this suggestion by emphasizing that Roth’s was a misrepresentation of the government’s claim. As Feigin could have explained, the federal government is not seeking to criminalize “public officials acting for personal . . . partisan or political reasons.” This case is not about motives; it is about lies (here the nonexistent traffic study) and conduct (here the misallocation of public resources)—the basic elements of a fraud claim.

Kelly v. United States on Oyez: https://www.oyez.org/cases/2019/18-1059

Key Questions from Oral Argument

Justice Alito (43:29): Isn’t it often the case that somebody who has the authority to do something may lie about why the person is doing the thing because, if the real reason was exposed, there would be -- it would cause a furor, people would be angry, but that doesn’t show the person doesn’t have the authority to do it. A person hires his brother-in-law for a position. Why did you hire this particular person? Well, this person is the very best qualified for this job. When the real reason is his wife wants him to do it…. He doesn’t want to say it. Does that show he didn’t have the authority to fill this position?

Kate Shaw: First, your honor, our position that Baroni lacked the authority to close the lanes doesn’t rest solely on the fact that he lied. The jury heard extensive additional evidence about the Port Authority, including testimony that the person who holds the position of Executive Director—which Baroni did not—is responsible for the day-to-day operations of the Authority, and would always be consulted prior to any Port Authority operations that cause significant disruption. David Wildstein also testified that they needed to invent a traffic study to enable them to execute this scheme. All of that was more than sufficient evidence supporting a jury conclusion that Baroni lacked the authority to order the closures.

As to the government official in your hypothetical who conceals his real reasons for exercising discretionary authority in a particular way—say, because those reasons are self-interested—that is an entirely different scenario than the one here. To match the facts of this case, your government official would have to lack the legal authority to make the hire at all, falsely claim that authority, offer a relative a position that the government official has no legal authority to fill, pay that relative a government salary, and later maintain that the hire was made on the basis of merit. And yes, where all of that occurred, it might well be fraud.

One more point on the issue of mixed motives, which your question speaks to. The ordinary mixed-motive politician, going about his or her work, seeking both to serve the public and to secure reelection, has nothing to fear from an affirmance in this case. That is true even if the politician conceals the real motives underlying particular actions he or she takes.

Here three specific elements combine to make this scenario different from the one you are describing, and that do make this case an appropriate one for the application of the federal fraud statutes: first, the lies about the existence of an invented traffic study; second, the fact that the conduct could not have occurred but for the lies—not just would have met condemnation or caused embarrassment, as in your hypo, but could not have occurred; and third, the conversion of public resources in the form of both traffic lanes and the public employee labor required to realign the lanes.

Justice Breyer (36:11): Hey, there’s a law here, a rule, a rule, no, a rule: Treat every street alike. And you know what th[is hypothetical] snowplow operator did? He snowplowed the mayor’s street first. Now, that is not a good thing to do. It is really undesirable. And maybe it should be a crime. But 30 years in prison? That, I'm not sure. And that's -- this statute has to do with property fraud. And is taking the snowplow and putting it to the use of the public streets in violation of a rule, treating the mayor better -- is that a property crime?

. . .

[There is a lie:] My -- my where are you going? I am going to Fifth Street first, and then I will go to the grocery store down the street --

. . .

--- and then I -- Ah. And you know what he did? He went to the city councilman’s street. All right? There’s a lie. It’s easy to make up cases that there’s a lie in, and that’s my problem, same problem.

We’re back into honest services fraud, which is fraud and bad.

And -- and the question is does this statute get it? (Tr. 36:11)

Kate Shaw: The snowplow case is fundamentally different from this one. The snowplow operator presumably gets to exercise some discretion regarding how, and in what order, he plows the streets of the city. So even if he exercises that discretion in ways we might find objectionable or even corrupt, and even if he lies about it, that does not bring his conduct within the reach of the federal fraud statutes. But if he’s a snowplow operator and he acts entirely beyond his authority—borrows a bulldozer from the city fleet, falsely claims he’s authorized to take it, and then uses that bulldozer to dump a pile of gravel in the driveway of the mayor’s chief political rival so that she cannot get her car out—that would absolutely be actionable fraud. And I submit that those are essentially the facts we have here.

Contributors

Kate Shaw