After a three-hour hearing Tuesday, a New Jersey judge reserved decision on the right of former confidantes of Gov. Chris Christie to take the Fifth Amendment against subpoenas from the Bridgegate investigative committee.
Judge Mary Jacobson asked both sides to brief the issue of the power of the Legislative Select Committee on Investigation to grant immunity to Bridget Kelly, the governor’s former deputy chief of staff, and Bill Stepien, his campaign manager, and the effect of such a grant on criminal proceedings.
Kelly and Stepien are the only two out of more than 30 subpoenaed persons to assert the privilege against self-incrimination. The committee is asking for a declaratory judgment that the two are in violation of valid subpoenas and that they be ordered to comply.
Jacobson, Mercer County’s assignment judge, gave the committee’s special counsel, Reid Schar, of Chicago’s Jenner & Block, until Monday to file a brief on immunity. Defense counsel have until the following week to respond.
Jacobson had concerns that the subpoenas, which demand any and all documents relating to closure of local access lanes to the George Washington Bridge last September, may be overly broad.
Schar disagreed. “This is not, has not been and the subpoenas are not fishing expedition of any sort,” he said. “These subpoenas are of the types that are routinely issued every day in the United States.”
Jacobson asked Schar where this case fell between U.S. v. Hubbell, 530 U.S. 27 (2000), where the U.S. Supreme Court disallowed a broad, unspecific document demand, and U.S. v. Ponds, 454 F.3d 313 (D.C. Cir. 2006), where a district court allowed a demand if the government could establish knowledge of the existence, possession and authenticity of the documents with “reasonable particularity.”
Schar said the present case is closer to Ponds in that the committee knows the documents exist because of emails and texts that already have been turned over by David Wildstein, the former director for interstate capital projects at the Port Authority of New York and New Jersey.
“Hubbell was a fishing expedition,” Schar said.
“This is not based on inference?” Jacobson asked.
“This is not an inference, it’s a knowledge,” Schar replied.
“There were additional documents, and we have since received them,” he said. “[Stepien] is central to this. I’m not guessing, judge.”
Jacobson suggested the committee might grant Stepien and Kelly some sort of immunity, but Schar said he did not believe the committee had that authority, given that U.S. Attorney Paul Fishman is conducting a criminal investigation.
“We shouldn’t have to grant them immunity to get documents,” he said.
Jacobson said the committee was seeking personal emails and texts. “I’m not sure where that falls on the spectrum,” she said.
Schar said the documents are still government records. Kelly, Stepien and Wildstein, he said, would often switch, “in a concerted effort” to personal accounts when discussing the lane closures. “You can’t take public information and privatize it,” he said.
Jacobson asked whether, if she found the subpoenas to be overly broad, she could use “judicial surgery” to pare them down.
“That’s what courts do,” Schar said. “It’s within your authority.”
Stepien’s attorney, Kevin Marino, said the subpoena actually seeks testimony as well. “The subpoena requires him to admit to the existence of documents and to the possession of documents. That is precisely what the Fifth Amendment proscribes,” said Marino, of Chatham’s Marino, Tortorella & Boyle. “He has the right not to become a witness against himself.”
Marino also took exception to Schar’s claim that the committee knows of additional documents. “The Legislature doesn’t know any documents exist,” he said. “They’re trying to enlist [Stepien] as an agent.”
Jacobson asked whether the Fifth Amendment can be invoked against a document subpoena. Marino said it can because testimony is still being required. “The act of handing over documents is not testimony, but you’re providing information and furnishing a link in the chain of evidence,” he said.
Marino also challenged Schar’s claim that Stepien and Kelly have nothing to worry about, since they’ve not been told by the federal government that they’ve been made prosecution targets.
“They’re very much in the zone of suspicion,” he said, noting the committee appears to be dovetailing its efforts with the U.S. Attorney’s Office. “They are the two people most in the center of danger.”
Kelly’s lawyer, Michael Critchley, said the fact that Kelly was a state employee at the time emails and texts were being exchanged does not necessarily mean all of those communications fall under the Open Public Record Act.
“Even if a person is a public employee, she does not forfeit her constitutional rights,” said Critchley, of Critchley, Kinum & Vazquez in Roseland.
Jacobson asked Critchley about the possibility of immunity.
Critchley saw none, saying that if there were a grant of immunity by the committee, the prosecution could continue though the federal government could not use anything turned over to the committee as evidence.
“The committee can give immunity but it doesn’t want to,” Critchley said, “because it’s working together with the federal government.”
Critchley said there was another danger if Kelly is ordered to comply. “If she turns over any documents, she’s waiving the Fifth Amendment,” he said.
Kelly was present at Tuesday’s hearing and was sitting at the defense table. Critchley was asked later why she attended. He said she had every right to attend, noting that her future is at stake, depending on how Jacobson rules.
On Wednesday, Marino demanded that Schar release the documents that allegedly “demonstrate that Mr. Stepien is ‘central’ to the Committee’s investigation.”
Marino gave Schar five days to turn over the documents. He also filed a documents demand with Jacobson, saying the complaint and order to show cause were “amended orally.”
Schar did not immediately respond to a request for comment.
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