Bridget Anne Kelly. Photo: Carmen Natale / ALM

The U.S. Supreme Court on Tuesday appeared skeptical that a federal crime was committed in the so-called Bridgegate scandal in which aides to then-Gov. Chris Christie of New Jersey were accused of orchestrating a massive traffic jam on the George Washington Bridge for political purposes.

The justices heard arguments in the case Kelly v. United States, the latest in a series of cases in which the high court has examined, and limited, the power of federal prosecutors under certain broad criminal statutes.

Bridget Kelly, a former deputy chief of staff to Christie, and William Baroni, then deputy director of the Port Authority, were convicted of federal wire fraud and federal program fraud for conspiring to realign the lanes on the bridge as political payback to the mayor of Fort Lee, New Jersey, who had declined to support Christie's reelection. The lane realignment on the critical thoroughfare caused a four-day traffic jam. A federal appeals court in November largely upheld the convictions.

Eric Feigin, deputy U.S. solicitor general, struggled to persuade a number of justices that the object of the fraudulent scheme was to obtain "property," an element of wire fraud.

"The statute says the object of the scheme has to be to obtain property," Justice Elena Kagan said at one point. "Here the ordinary juror would see the object was to create a traffic problem." Echoing Kagan's concern, Chief Justice John Roberts Jr. told Feigin, "The object was not to change lanes but to create a traffic jam."

Feigin argued the lane realignment "was a particular type of fraud—a commandeering (of the lanes and resources)." He continued: "The object was to take control of real property. It is when the defendant tries to take over property that is in the hands of the victim and manage it as if it is his own property. That's what they were doing with the lanes on the bridge and the employee resources."

Justice Stephen Breyer testifying in 2015. Photo: Diego M. Radzinschi /ALM

Justice Stephen Breyer raised concerns with Feigin and Kelly's counsel, Jacob Roth, partner at Jones Day, that what was actually at the heart of the scandal was more like honest services fraud.

Breyer said during one exchange, "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. The question is, does this statute get it?"

Roth argued that Port Authority, at most, was deprived of regulatory control, not property.

"The federal property fraud statute is concerned with cheating the government out of its property rights," Roth said. "And that's just not what we have here. What we have here is an abuse of power, a political abuse of power and, if anything, that sounds in honest services fraud which this court has limited, due to vagueness concerns, to bribes and kickbacks."

Sidley Austin partner Michael Levy, counsel to Baroni, told the justices that the government has conceded that a public official who is acting politically, not for personal gain, does not commit fraud by lying about his reason for an official decision if the decision was within his general authority.

"That concession requires reversal," Levy argued. The government, he said, proved that Baroni was responsible for supervising all aspects of Port Authority's operations and there was no policy preventing him from using that authority to alter traffic patterns.

"For the government's rule to work, this court should require an objectively clear lack of authority, something not even arguably shown here," Levy told the justices. "Otherwise, any official who conceals his political motivation risks being convicted of fraud if a prosecutor or jury later disagrees about the scope of his authority."

Christie attended Tuesday's arguments at the Supreme Court. A ruling is expected by the end of June.

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