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Christie's former allies say political revenge is not a federal crime

David Voreacos

By David Voreacos Bloomberg

Published April 29, 2016

Christie's former allies say political revenge is not a federal crime

The unusual creation of traffic jams near the George Washington Bridge nearly three years ago by former allies of New Jersey Gov. Chris Christie spawned a scandal and prosecution unlike any other in U.S. history.

A federal judge is hearing arguments from two former Christie allies that prosecutors twisted the law so much to find a crime to match the facts that she should dismiss the charges.

The question is whether U.S. Attorney Paul Fishman misapplied the law in charging Bridget Anne Kelly and Bill Baroni over closing lanes near the bridge to create traffic jams and punish the mayor of Fort Lee, New Jersey, for failing to back Christie's re-election in 2013.

"There is no other federal criminal case that has been prosecuted anywhere, at anytime, with facts even remotely similar to the facts here," Kelly's attorney Michael Critchley wrote in a Feb. 1 motion seeking the indictment's dismissal. "There has never been a criminal civil rights prosecution where a defendant is alleged to have caused traffic."

A nine-count indictment last year charged that Kelly and Baroni misappropriated resources of the Port Authority of New York & New Jersey, which owns the bridge, to punish the mayor, Mark Sokolich. They are also accused of defrauding the Port Authority of property rights and depriving the people of Fort Lee of their civil rights to travel on roads free of unreasonable government restriction.

Two counts allege they violated Section 666 of the Title 18 of the U.S. Code, a provision typically used for fraud and embezzlement involving agencies receiving federal funds.

Fishman's office "searched for something -- anything -- it could use to bring charges," Baroni's attorney Michael Baldassare said in a Feb. 1 request to dismiss the case. Section 666 "does not criminalize political revenge in the form of traffic," Baldassare wrote.

Defense lawyers also questioned whether traffic jams deprived Fort Lee residents of a civil right to free movement that is protected by federal law. "Simply put, Fort Lee residents were able to and did exercise their purported right to localized travel and were therefore not deprived of this alleged right," Critchley wrote.

Kelly and Baroni hugged and chatted before the start of the hearing in Newark, New Jersey, federal court Thursday.

Christie wasn't charged in the scandal, which served as a drag on his failed bid for the Republican nomination for the White House. Taxpayers paid $8 million to a law firm commissioned by Christie to investigate the case. U.S. District Judge Susan Wigenton, who is overseeing the Kelly and Baroni case, criticized the firm last year, saying it used "opacity and gamesmanship" in producing a 360-page report on the scandal.

Baroni was deputy executive director of the Port Authority and Kelly was Christie's deputy chief of staff. They are accused of plotting with former Port Authority executive David Wildstein, who pleaded guilty and is helping prosecutors.

In a March 11 filing, prosecutors denied they misapplied the law, saying Section 666 can be used to cover the theft and misapplication of employee services.

Kelly and Baroni benefited "in a tangible, financial sense because misappropriating employee services is the functional equivalent of stealing compensation paid to those employees," prosecutors wrote. Their tangible benefit was clear: "they obtained labor paid for by the Port Authority."

While the motive for those prosecuted under the law is usually greed, in this case it was to punish Sokolich by causing traffic jams, prosecutors wrote. They also said Fort Lee residents had a constitutionally protected right to free movement.

"The violation of the right is not dependent on the outright prevention of travel but rather whether any infringement on the right is the product of an illegitimate government purpose," prosecutors wrote.

As part of the conspiracy, Baroni testified falsely to the state Assembly Transportation Committee in November 2013 about the circumstances of the lane closings, according to the indictment.

Baroni said he was granted immunity to testify and can't be prosecuted for his statements. Prosecutors replied that his testimony was unsworn and he wasn't granted immunity.

"The indictment should be dismissed because the government improperly used immunized testimony before the committee," Baroni's lawyer Jennifer Mara argued to the judge.

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