The underlying facts in Kelly v. United States (18-1059) began out of the “Bridgegate” scandal when senior political officials William Baroni and Bridget Anne Kelly reallocated two traffic lanes over the George Washington Bridge. The government alleges that the lane reallocation was done to increase traffic in the town of Fort Lee, New Jersey to punish Fort Lee’s mayor for not endorsing New Jersey governor Christie’s bid for reelection, while Baroni and Kelly stated that the lane reallocation was part of a traffic study. Federal prosecutors from New Jersey’s U.S. Attorney’s Office indicted Baroni and Kelly for wire fraud under 18 U.S.C. § 1343 and theft from a federally funded entity under 18 U.S.C. § 666.
At trial, Baroni and Kelly filed motions to dismiss the indictment. The district court denied motions by Baroni and Kelly to dismiss the indictment and reasoned that the indictment sufficiently alleged that Baroni and Kelly “deprived” the Port Authority of “control over its assets” to move forward with the wire-fraud count. On section 666, the court construed the statute to proscribe “any improper use of property,” and then declared it “improper” to be motivated by political “retribution.” The district court acknowledged that this prosecution was “novel,” but rejected a vagueness challenge because the statutes at issue were “not unclear” or “ambiguous.” The jury convicted both Baroni and Kelly on all counts and Baroni was sentenced to 24 months in prison and Kelly was sentenced to 18 months. The Third Circuit affirmed the convictions under 18 U.S.C. § 1343 (wire fraud) and 18 U.S.C. § 666 (fraud from federally funded programs).
The case is now pending before the U.S. Supreme Court. In her petition, Kelley argues that the “fraud,” and the basis for convictions, was the concealment of political motives for an otherwise legitimate official act. Kelly goes on to state that all that separates a routine decision by a public official from a federal felony, per the decision of the Third Circuit, is a jury finding that the public-policy justification for the decision was not really and truly the subjective reason for making it. Attorneys for Kelly caution that this interpretation would allow any federal, state, or local official to be indicted based on nothing more than the allegation that he or she lied in claiming to act in the public interest. Kelly proposes the following example in her slippery slope argument: “Consider a cabinet secretary who appoints a friend to a public post, declaring him to be best-qualified. Or a deputy mayor who orders pothole repair to reward her boss's political base, justifying it on neutral policy grounds.” Kelly argues that all of these actions would be prosecutable as fraud if the Supreme Court upholds her conviction. Commentators believe that Kelly v. United States gives the Supreme Court another opportunity to continue the recent trend (see McDonnell v. United States, 136 S.Ct. 2355 (2016) and Yates v. United States, 135 S.Ct. 1074 (2015)) in narrowing the ability of federal law enforcement to prosecute political corruption and white-collar crimes.
Sheena Foye and James R. Wyrsch are with Wyrsch Hobbs Mirakian P.C. in Kansas City, Missouri.