Mark Sheridan
Mark Sheridan ()

The Patton Boggs lawyer retained by Gov. Chris Christie’s campaign committee to respond to subpoenas in the unfolding scandal over George Washington Bridge lane closures last fall is asking permission to access unused campaign funds to pay the firm’s fees.

The Chris Christie for Governor Committee has almost $127,000 in cash still on hand after expenditures of $12,187,095 in last fall’s reelection campaign, and it wants to raise more.

In a letter to New Jersey’s campaign finance watchdog, the Election Law Enforcement Commission, Patton Boggs partner Mark Sheridan says approval of the request is warranted because the subpoenas suggest no wrongdoing by the committee and the money would not be spent in a way that impacts any election.

Sheridan also says that enabling the committee to respond to the subpoenas is in the interest of justice and that without access to the funds, it “will find itself without the means necessary” to do so and “will arguably face contempt charges” from the subpoena issuers: U.S. Attorney Paul Fishman and the Joint Legislative Select Committee on Investigations.

The material encompassed by the documents-only subpoenas includes emails, text messages, instant messages and other electronically stored data or information.

Sheridan tells ELEC that in addition to legal fees, he anticipates “a significant cost” for hiring a company “to image and preserve the data on computers, tablets and smart phones of the candidate committee and its employees.”

Sheridan wants ELEC to provide a go-ahead that would cover follow-up subpoenas as well.

His letter asks for an advisory opinion that would allow the committee to continue to raise funds and to spend them in responding to the subpoenas and “any ancillary requests for information.”

There is precedent for allowing a campaign to keep fund-raising after an election. In December 1993, ELEC allowed People for Whitman, the campaign committee for Christie Todd Whitman when she won her first term as governor that year, to continue raising and spending money for the purpose of paying legal fees and other expenses incurred in dealing with claims that campaign manager Ed Rollins had laid out campaign money to try to suppress the black vote. It also said those expenditures would not count toward the ceiling for publicly financed campaigns, then $5.9 million.

Approval of Sheridan’s request depends on whether the subpoena compliance costs qualify as “reasonable fees and expenses of legal representation, the need for which arises directly from and is related to the campaign for public office or the ordinary and necessary duties of holding public office.” Sheridan contends they do, as administrative expenses of the committee.

He also relies on a regulation allowing use of election funds in defending actions before the Joint Legislative Committee on Ethical Standards, saying that committee is akin to the current one.

A complicating factor is that the 2013 Christie campaign availed itself of matching public funds. Consequently, it was subject to a $12.2 million expenditure limit for the election.

Despite still having $126,608 in cash, the campaign is only $12,905 short of the spending cap, far less than it needs to respond to the subpoenas.

In his letter, Sheridan asks ELEC to treat the subpoena-related expenditures as outside the current $12.2 million limit on publicly funded campaigns. Even though they are not within the exceptions spelled out in the law, Sheridan says ELEC has a history of using its inherent power to expand that list to cover such items as food and beverages at candidate events and election night celebrations.

Another aspect of public funding is that any amounts left over must be returned six months after the election.

Tuesday’s meeting is a special one called to deal with the request, which was received on Jan. 31.

ELEC, which is required by law to answer such requests within 10 days, is expected to reach a decision at Tuesday’s meeting.

ELEC has been one short of its full complement of four commissioners since the November 2011 death of retired Superior Court Judge Lawrence Weiss, whom Christie had appointed only eight months earlier.

One of the three current members, Walter Timpone, named by Christie in October 2010, has recused because he briefly represented former Christie staffer Bridget Kelly, author of the infamous ‘It’s time for some traffic problems in Fort Lee” email that sparked the probe.

Timpone, of McElroy Deutsch Mulvaney & Carpenter in Morristown, dropped Kelly as a client shortly after she retained him, citing the conflict created by virtue of his ELEC position. Her new counsel is Michael Critchley of Critchley Kinum & Vazquez in Roseland.

That leaves just two commissioners to decide Sheridan’s request: Chairman Ronald DeFilippis and Amos Saunders.

DeFilippis, placed on ELEC by Christie in 2010, is a CPA with Mills & DeFilippis in Randolph.

Saunders, a 2008 Gov. Jon Corzine appointee, is a retired Superior Court judge from Passaic County.

If DeFilippis and Saunders deadlock, it is as good as a win for Sheridan because ELEC would not be able to go after the campaign committee for using the funds as it did in the case of Sharpe James, a former Newark Mayor and state senator convicted on corruption charges.

In August 2012, a judge ordered James to reimburse $94,000 he took from his campaign fund without permission to pay his defense lawyer and to pay a $30,000 fine to ELEC. The ruling is on appeal.

Sheridan says the issue before ELEC is “distinct from those situations in which an officeholder has attempted to utilize funds … to finance the defense of a criminal investigation focused on the activities of the officeholder.”

Sheridan did not return a call for comment.

Former ELEC chair Jerry English, now with Lindabury McCormick Estabrook & Cooper in Summit, declines comment on Sheridan’s request but calls it “outrageous” that so much time has passed without Weiss being replaced.