The politically motivated George Washington Bridge access lane closures at the center of the Bridgegate scandal were not a crime, co-defendants William Baroni Jr. and Bridget Kelly have asserted in appeals of their criminal convictions.
In briefs filed on Friday with the U.S. Court of Appeals for the Third Circuit, Baroni and Kelly argued that their conviction under 18 U.S.C. §666 for allocation of public property based on political motives represents a misuse of that statute. Baroni and Kelly were convicted under the law’s proscription on misapplication of government property, but they argue in court papers that their closure of toll booth access lanes used by Fort Lee residents merely allowed the use of those toll booths by other drivers. And the redirection of government property to a legitimate public use cannot be deemed a crime simply because it was done with an allegedly improper motive, Baroni and Kelly claim.
Baroni, a former deputy director at the Port Authority of New York and New Jersey, and Kelly, who was Gov. Chris Christie’s deputy chief of staff, were convicted of a long list of charges in connection with the lane closures in November 2016. Prosecutors claimed that the traffic gridlock in Fort Lee that resulted was intended as a payback for a decision by that town’s Democratic mayor, Mark Sokolich, not to endorse the re-election campaign of Christie, a Republican. U.S. District Judge Susan Wigenton issued sentences of 24 months in jail for Baroni and 18 months for Kelly. David Wildstein, another of Christie’s Port Authority appointees who participated in the scheme, was sentenced to three years’ probation after testifying against Baroni and Kelly.
Baroni and Kelly also invoke the Supreme Court’s 2016 decision in McDonnell v. United States to challenge what they argue is the criminalization of common political actions such as the lane closures. In fact, Henry Asbill of Jones Day in Washington, D.C., who led the team representing former Virginia Gov. Bob McDonnell at the Supreme Court, is also representing Kelly, along with counsel of record Yaakov Roth, also of Jones Day. They are listed on the appellate brief along with Kelly’s trial counsel, Michael Critchley of Critchley, Kinum & Denoia of Roseland.
Baroni, who was represented at trial by the Newark firm of Baldassare & Mara, has retained Sidley Austin for his appeal.
In McDonnell, the Supreme Court invoked constitutional concerns such as fair notice and federalism to justify a narrow construction of official action under the federal corruption laws, Kelly said in her appellate brief. That decision eschewed a reading that would “cast a pall of potential prosecution” over “commonplace” political activities, her brief said, citing the McDonnell ruling.
Baroni and Kelly assert that Wigenton wrongly applied a broad reading to §666, which is titled “Theft or bribery concerning programs receiving federal funds.” The law makes it a crime to embezzle, steal, obtain by fraud, or otherwise without authority knowingly convert or intentionally misapply more than $5,000 worth of the property of a federally funded agency.
A statute that can be interpreted “to be either a meat ax or a scalpel should reasonably be taken to be the latter,” Kelly stated in her brief.
“That lesson looms large in this case, where the Government, in an attempt to punish unpopular conduct, has contorted long[-]standing statutes to criminalize a stunning swath of routine political decision making. There is hardly an official in the nation who could not be accused of allocating resources based on political considerations,” the brief said.
Baroni contends on appeal that the government’s theory of his offense is predicated not on his conduct, but on the assertion that he engaged in that conduct for a prohibited political purpose. No showing was made that Baroni obtained any pecuniary benefit from the lane closures, or caused someone to obtain such benefits. What’s more, the government never demonstrated that altering traffic patterns—even with the knowledge that it will cause traffic problems—is an inherently impermissible use of Port Authority property, he said. And the government did not demonstrate that Baroni lacked authority to order the realignment of traffic patterns on the bridge, he said.
“Section 666 does not criminalize a public official’s otherwise lawful allocation of public resources just because he acted with the intent to impose political punishment,” Baroni said in his brief.
A spokesman for the U.S. Attorney’s Office, Will Skaggs, said his agency would not comment on the filings.