Ryan Kelly, left, and Stephen Miller, right, of Cozen O'Connor.

When does playing politics become criminal? Two lower courts in our area have held that there is a breaking point. In Kelly v. United States, the court must decide whether a public official who takes an official action motivated by political retribution violates federal fraud statutes.

This matter begins with the 2013 gubernatorial election in New Jersey. Members of the Governor's Office were looking ahead to the election and, in particular, shoring up support for the incumbent governor, Chris Christie. Specifically, the Governor's Office sought the endorsement of the mayor of Fort Lee. A town of approximately 35,000 residents, Fort Lee is situated along the Hudson River and connected to New York City by the George Washington Bridge. When the Governor's Office was unable to secure the endorsement of Fort Lee's mayor, a revenge plot was hatched.

One of the plotters was Bridget Anne Kelly, deputy chief of staff for New Jersey's Office of Intergovernmental Affairs. Kelly contacted David Wildstein, the director of Interstate Capital Projects for the Port Authority, to initiate a plan to disrupt traffic in Fort Lee as political retribution against the town's mayor. Wildstein eventually became a cooperating witness in the case. Wildstein informed his boss, the Port Authority deputy executive director and the other defendant in this case, William Baroni, that Kelly wanted to reduce the number of lanes reserved for Fort Lee traffic from three to one in order to punish the mayor for not endorsing Gov. Christie.

Baroni agreed to make the lane changes, and, for four days in September 2013, only one lane on the George Washington Bridge was available for travel between Fort Lee and New York City. As a cover story for the politically motivated decision, Baroni and Wildstein publicly claimed that the lane closures resulted from a "traffic study."

Subsequently, Baroni and Kelly were convicted of wire fraud (18 U.S.C. Section 1343) and federal program fraud (18 U.S.C. Section 666), which criminalizes conduct that defrauds the government of money or property under its control or ownership. Kelly and Baroni were prosecuted under the theory that Section 666 applies where the government is deprived of its ability to control property (such as the traffic cones and lane designations on the George Washington Bridge) and where the government is deprived of money and labor (such as when it pays wages to government employees for time spent by the employees working on a fraudulent scheme).

Kelly and Baroni, the petitioners, argue these federal fraud statutes do not criminalize their conduct. The petitioners argue they did not steal money or property from the government but merely made a public policy decision they were authorized to make. That such a decision was motivated by political considerations does not make it fraud, they contend. In fact, petitioners argue that affirming their convictions would weaponize the federal fraud statutes, allowing political opponents to allege pretextual retribution for any discretionary policy that adversely impacts a politician's opponents.

The government contends that Kelly and Baroni defrauded the government of the labor of public employees, by spending their own paid time and that of other Port Authority employees creating and executing the traffic-change scheme. The government also argues Kelly and Baroni deprived the government of the right to control its property. Finally, in response to the "slippery slope" argument, the government sees no problem because, to paraphrase, why should the law protect a government official if there is evidence that she fabricated a policy basis to spend tax dollars on an act of political retribution?

The court has not yet scheduled oral argument in this case, and a decision is not anticipated until mid-2020.

Stephen A. Miller practices in the commercial litigation group at Cozen O'Connor's Philadelphia office. Prior to joining the firm, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Ryan I. Kelly is a litigation associate at Cozen O'Connor. He received his J.D., magna cum laude, from Villanova University School of Law, and his B.A., cum laude, from The Ohio State University.