orge Washington Bridge ()
A New Jersey legislative committee filed court papers Wednesday to compel compliance with its subpoenas by two figures implicated in last September’s closure of local access lanes to the George Washington Bridge.
The Legislative Select Committee on Investigation seeks declaratory judgments that Gov. Chris Christie’s former chief of staff, Bridget Kelly, and his former campaign manager, Bill Stepien, are acting in violation of valid subpoenas. Both have invoked the Fifth Amendment right against self-incrimination.
The complaints and briefs, seeking injunctive relief, were filed in Mercer County Superior Court.
Assignment Judge Mary Jacobson on Thursday issued orders to show cause setting down arguments in the two matters for March 11. The lawyers for Kelly and Stepien have until March 3 to answer the committee’s complaints, and the committee in turn has until March 7 to respond to the answers.
“Today’s court filings are an unfortunate but necessary step to further the committee’s work,” said the committee cochairs, Assemblyman John Wisniewski, D-Middlesex, and Sen. Loretta Weinberg, D-Bergen. “The committee remains confident in its legal position. We will now let the judicial process play out.”
Kelly’s lawyer, Michael Critchley, of Roseland’s Critchley, Kinum & Vazquez, says he has not had a chance to review the documents filed. “I look forward to discussing this in front of whatever judge it is assigned to,” he says.
Stepien’s lawyer, Kevin Marino, of Marino, Tortorelli & Boyle in Chatham, says, “We will review the filing and respond appropriately.
Christie fired Kelly in January after learning that she orchestrated the Sept. 9 through Sept. 13 lane closings with David Wildstein, the director of interstate capital projects at the Port Authority of New York and New Jersey, possibly because the Democratic mayor of Fort Lee, Mark Sokolich, declined to endorse Christie for reelection.
Christie demanded that Stepien withdraw his name from consideration for the job of state Republican Party chairman —and to give up a consultancy with the Republican Governors Association, which Christie chairs—in light of emails turned over to investigators by Wildstein, showing Stepien and Wildstein discussed the closures.
The complaints were filed by the committee’s special counsel, Reid Schar, of Jenner & Block in Chicago, and local counsel Leon Sokol and Anthony Bocchi, of Sokol, Behot & Fiorenzo in Hackensack.
Kelly and Stepien have refused to comply “despite the committee’s clear authority,” say the complaints.
In supporting briefs, the committee says Kelly and Stepien cannot avail themselves of the Fifth Amendment protections against self-incrimination because they have not proven the possibility of criminal prosecutions against them are “substantial and real,” as required by a ruling by the U.S. Court of Appeals for the Third Circuit in Nelson v. Pilkington (In re Flat Glass Antitrust Litigation), 385 F.3d 350 (2004).
“As courts have repeatedly held, a special and generalized fear that producing documents in response to an investigative summons or subpoena might someday result in a related prosecution is not sufficient to invoke the Fifth Amendment privilege,” the briefs say.
Both Kelly and Stepien rely on another U.S. Supreme Court ruling, United States v. Hubbell, 530 U.S. 27 (2000), involving Webster Hubbell, a former confidante of President Clinton and former law partner of Hillary Clinton.
Hubbell, who pleaded guilty to mail fraud and tax evasion, agreed to cooperate in the Whitewater investigation. The special counsel believed Hubbell had violated his plea promise and served him with a subpoena. The Supreme Court agreed with Hubbell that he could invoke the Fifth Amendment because he knew he was a criminal investigation suspect.
Here, the committee says, neither Kelly nor Stepien believe they are under investigation for any criminal act.
The committee also says targets of subpoenas may not invoke the Fifth Amendment in a “blanket fashion” or use the protection to draw a “conjurer’s circle” around the obligation to comply with subpoenas. Rather, Fifth Amendment protections may be used only for “specific objections to particular questions,” the committee argues.
Additionally, the committee says that the documents – primarily e-mails and texts – fall under the required records exception to the privilege outlined by the Supreme Court in Shapiro v. United States, 335 U.S. 1 (1948). “That exception limits the scope of the privilege to exclude records that must be maintained by law,” the committee says.