Gov. Chris Christie’s former deputy chief of staff Bridget Kelly filed court papers on Thursday seeking to block a documents subpoena issued by the legislative committee investigating the Bridgegate scandal.
Like William Stepien, Christie’s former campaign manager who was also subpoenaed, Kelly has refused to comply based on her Fifth Amendment privilege against self-incrimination, her Fourth Amendment right against unreasonable searches and seizures and corollary protections provided by New Jersey law.
On Feb. 20, the New Jersey Legislative Select Committee on Investigation filed separate suits against Kelly and Stepien to enforce the subpoenas, calling their objections invalid.
The cases are scheduled to be heard by Mercer County Superior Court Judge Mary Jacobson on March 11.
Stepien’s attorney, Kevin Marino of Chatham’s Marino Tortorella & Boyle, filed his opposition brief on Tuesday.
The Jan. 27 subpoenas seek documents pertaining to the closure of local access lanes to the George Washington Bridge last September, causing gridlock in Fort Lee, which some have labeled as political retribution orchestrated by Kelly, Port Authority officials appointed by Christie and possibly others.
Kelly, author of the infamous “time for some traffic problems in Fort Lee” email, points to statements by Assemblyman John Wisniewski, D- Middlesex, the committee’s co-chairman, as a basis of her concern about her exposure to criminal prosecution.
A brief filed by her attorney, Michael Critchley, says that before Kelly was subpoenaed and the U.S. Attorney’s office announced that it, too, was investigating, Wisniewski, “charged with leading the purportedly impartial, unbiased investigation” had “already concluded a crime had been committed” and that a cover-up was underway.
Critchley, noting Wisniewski now says there is no evidence that any agency suspects Kelly of a crime and calls criminal charges “hypothetical,” says Wisniewski’s “rush to judgment,” his conflicting statements concerning Kelly’s criminal exposure and the parallel federal probe show that Kelly’s concern over incriminating herself by producing the documents is “not trifling or imaginary but substantial and real.”
Critchley writes that an investigator from the U.S. Attorney’s Office named Thomas Mahoney tried to contact Kelly, her parents, her ex-husband and other in-laws to ask questions about her, though they refused to speak with him
Mahoney also contacted Critchley’s firm, Critchley Kinum & Vazquez in Roseland, seeking to interview Kelly.
The U.S. Attorney’s Office has met with Fort Lee Mayor Mark Sokolich and Christie press secretary Michael Drewniak, Critchley notes.
Thus, even though Kelly has not been named as a target of the federal investigation, she is at least a subject of it, he says, adding “Kelly, therefore finds herself in the very ambiguous circumstances for which the Fifth Amendment’s protections are meant to serve.”
The committee’s position is that the privilege applies only to oral testimony and not to subpoenas that ask only for documents, like the ones at issue.
But Critchley points to U.S. v. Hubbell, 530 U.S. 27 (2000), as holding that the act of producing documents can be testimonial and privileged when it is necessary for the person subpoenaed to make “extensive use of the contents of his own mind” in identifying those that are responsive.
Kelly has been asked for all documents, communications and phone records “regarding” the lane closures and the term “regarding” is “vague” and “impermissibly subjective,” he says. “The cognitive process that Ms. Kelly must engage in to interpret the meaning and scope of the subpoena is the equivalent of oral testimony expressing [her] belief that the [documents she is producing] are those described in the subpoena.”
Critchley further argues that New Jersey common law recognizes an even broader right against self-incrimination that extends beyond the act of deciding which documents to produce or not produce to encompass the contents of certain personal documents.
Many of the documents demanded by the committee fall within that the “sphere of personal privacy” that New Jersey courts have protected from compelled disclosure he asserts.
Kelly’s response to the subpoena was originally due on Feb 3 and she raised her objections on that date.
One day later, committee counsel Reid Schar of Jenner & Block in Chicago, agreed to narrow the scope of requests for phone records and calendar entries to those relating only to specific individuals. Schar also allegedly asked that Critchley’s office “secure” Kelly’s electronic devices.
Critchley says the narrowing of the subpoena did not allay Kelly’s concerns because the committee made it clear that the original scope of the subpoena could be restored at a later time.
Wisniewski was not available for comment on Thursday night.