Bridgegate defendants Bridget Kelly and William Baroni Jr. are readying appellate arguments that downplay the severity of their actions in what prosecutors framed as—and a jury agreed was—the politically motivated lane-closure scheme, according briefs filed in advance of next month's scheduled appellate argument before the U.S. Court of Appeals for the Third Circuit.

Jail sentences await both defendants—24 months for Baroni and 18 months for Kelly—if the appeals court upholds their convictions after the April 23 hearing.  Each was convicted of misuse and conspiracy to misuse property of an organization receiving federal funds; wire fraud and conspiracy to commit wire fraud; conspiracy to deprive others of their civil rights; and depriving others of their civil rights under the color of law.

Kelly's lawyer, Yaakov Roth of Jones Day in Washington, D.C., citing a recent ruling from another federal appeals court in a sex offender registration case, has asked the Third Circuit to consider the Bridgegate lane closures “an inconvenience” to drivers who were caught in its resulting gridlock. Kelly's civil rights convictions, based on violating motorists' constitutional right to interstate travel, cannot be sustained because the law is unclear on whether imposing an inconvenience on travel without prohibiting free movement implicates the constitutional right to travel, Roth said in a Feb. 26 letter to the appeals court.

Roth said the Feb. 23 decision in United States v. Holcombe, from the U.S. Court of Appeals for the Second Circuit, has application to Kelly's case. She was former Gov. Chris Christie's deputy chief of staff. In the Holcombe case, a New York man who was convicted of sexual assault and was charged with failing to change his sex offender registration when he moved to Maryland claimed that New York's sex offender registry law violated his constitutional right to travel.

The Second Circuit, in Holcombe, expressed skepticism about whether the New York sex offender registration law implicated the right to travel, since nothing in the law prevents a sex offender from entering or leaving another state. The registration requirements may be “inconvenient,” but that does not mean they “unduly infringe the right to travel,” the Holcombe court said.

But Assistant U.S. Attorney Bruce Keller shot back, in a March 15 letter to the Third Circuit, saying, “although inconveniences do not necessarily implicate the right to travel, gridlocking an entire municipality for hours for four successive days is hardly an 'inconvenience.' And that conduct violates the fundamental right of interstate travel—long recognized in this and other Circuits—where, unlike Holcombe, no legitimate reason, much less a substantial or compelling one, justifies the conduct.”

Baroni's appellate brief centered on the argument that evidence for his conviction on 18 U.S.C. §666, which criminalizes theft or bribery from a program receiving federal funds, was insufficient because his action to reallocate use of toll booths on the George Washington Bridge in September 2013 was within his authority as deputy director for the Port Authority of New York and New Jersey, even if it was done for political purposes.

“No court has ever held the political distribution of public resources to be a crime under this statute,” Baroni's appellate attorney, Michael Levy of Sidley Austin in New York, said in a March 14 court filing. “The government seemingly admits as much, but says it is because 'defendant's scheme was literally unprecedented,'” Levy wrote. “Every case is unprecedented at some level of specificity. But even at the most generic level, the government cannot find a single successful prosecution of a public  official for using a public resource to favor or punish a constituency for a political reason,” Levy wrote.

Defendants in the case admitted that they reduced from three to one the number of lanes providing direct access to the George Washington Bridge from Fort Lee, New Jersey. They admitted doing so to punish Fort Lee's Democratic Mayor, Mark Sokolich, for refusing to endorse Republican Christie in his gubernatorial re-election campaign.

Levy said federal officials had attempted to bring similar prosecutions under §666 twice before but failed both times.

“In sum, the government abhors the conduct here, but would prefer to avoid close analysis of whether it is criminal,” Levy said.

Levy did not return a call requesting comment about the appeal.

Baroni also argues on appeal that evidence was insufficient on the wire fraud counts, and that Baroni's conduct did not violate any constitutional right.

Kelly also argues on appeal that §666 does not apply to the circumstances of the case. She also argued that the wire fraud convictions cannot stand because the Port Authority was not deprived of any property right.