William Stepien (The Star-Ledger)
A New Jersey judge has refused to enforce Bridgegate subpoena compliance against two top aides to Gov. Chris Christie, finding their exercise of the Fifth Amendment privilege valid.
Mercer County Assignment Judge Mary Jacobson held Wednesday that the New Jersey Legislative Select Committee on Investigation cannot compel Christie’s former deputy chief of staff, Bridget Kelly, and his two-time campaign manager, Bill Stepien, to provide documents that could be used against them in an ongoing criminal investigation by the U.S. Attorney’s Office.
The committee’s lawsuits sought declaratory judgments that Stepien and Kelly must comply with the subpoenas. Jacobson dismissed both complaints.
Kelly and Stepien have been subpoenaed for documents relating to their role in last fall’s closure of local access lanes to the George Washington Bridge.
Although the Fifth Amendment right against self-incrimination usually involves answering questions posed by prosecutors, “courts have long recognized that individuals may also assert the right in response to a demand for documents,” Jacobson said.
She found that both Stepien and Kelly were within the “zone of danger” of possible prosecution. “The unique facts of these cases reveal a prospect of a criminal investigation that is not merely hypothetical,” she said, noting that a federal investigation has been launched concerning the same subject matter and the federal government is authorized to prosecute state criminal offenses, such as official misconduct.
“Under these circumstances, it is reasonable for Mr. Stepien and Ms. Kelly to fear that they currently face the hazard of prosecution in the concurrent federal investigation,” Jacobson said.
“It is possible that either Mr. Stepien or Ms. Kelly could be prosecuted for such conduct as a result of the documents requested by the subpoenas, either as principals or accomplices,” she added.
Jacobson noted that the subpoenas are “extremely broad” in nature and that she is in no position to determine whether the documents could possibly contain incriminating information.
Jacobson further found, contrary to the committee’s contention, that it has the power to offer Kelly and Stepien use and derivative-use immunity from criminal liability. She said N.J.S.A. 52:13-3, which provides immunity to witnesses appearing before legislative committees, applies to subpoenas for document production, not just to witnesses’ appearances before committees.
Moreover, the 1968 Code of Fair Procedures, N.J.S.A. 52:l3E-l to -10, allows any legislative committee to grant “to witnesses appearing before it, or to persons who claim to be adversely affected by testimony or other evidence adduced before it, such further rights and privileges as it may determine.”
Jacobson said that if the committee offers use and derivative-use immunity, “Mr. Stepien and Ms. Kelly would have to comply with the subpoenas in their entirety to avoid being held in contempt. [They] would then be immunized from the use of any produced evidence that is incriminating in any subsequent prosecution, including any prosecution resulting from the ongoing federal grand jury investigation.”
Reacting to the ruling, Assemblyman John Wisniewski, D-Middlesex, the committee co-chair, said, “The committee felt it was very much in the public interest to seek to compel the production of these documents, but as we’ve said before, there’s more than one method to gather information in an investigation, and we will consider alternatives.”
Stepien’s lawyer, Kevin Marino of Chatham’s Marino, Tortorella & Boyle, calls the ruling “vindication” for his client. “In its zeal to achieve a blatantly political goal having nothing to do with Mr. Stepien, the committee disregarded the fundamental constitutional rights of this innocent man,” Marino says. “In the process, it wasted the taxpayers’ money —and the nation’s time—on a frivolous lawsuit to enforce a clearly invalid subpoena. That lawsuit has now been properly and roundly rejected.”
Kelly’s lawyer, Michael Critchley, of Critchley, Kinum & Vazquez in Roseland, says the ruling should deliver a message to “naysayers” who maintained their invocation of the Fifth Amendment would not stand. “I suggest they read Judge Jacobson’s opinion as a free tutorial on what the Fifth Amendment means to all citizens,” he said.
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