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Now It's Water Under the Bridge

by: Don Samuel

This morning, the Supreme Court unanimously – not even a concurring opinion – reversed the Bridgegate convictions. You will remember that in this case, the defendants shut down several lanes of traffic coming to the George Washington Bridge causing a massive traffic jam in Fort Lee, NJ, as “payback” for the mayor’s refusal to support Governor Christie.

As discussed in our earlier blog post, the problem was simple: bad behavior, even corrupt behavior, on the part of public officials is not a federal crime and it is not mail or wire fraud unless the officials take property or money. The Bridgegate defendants did not “take” the lanes of traffic. They did not take money. Rather, as Justice Kagan wrote, the conduct of the defendants resulted in “Drivers from Fort Lee [getting] two fewer lanes while drivers from nearby highways [got] two more. The [defendants] did so, according to all the Government’s evidence, for bad reasons; and they did so by resorting to lies. But still, what they did was alter a regulatory decision about the toll plaza’s use—in effect, about which drivers had a “license” to use which lanes. And under Cleveland, that run-of-the-mine exercise of regulatory power cannot count as the taking of property.”