Counsel for the Bridgegate investigative committee told a state judge on Monday that it has no statutory power to grant immunity to witnesses Bridget Kelly or Bill Stepien if they should comply with its subpoenas for documents.
But that issue is moot until and unless Superior Court Judge Mary Jacobson rules their assertions of the Fifth Amendment privilege against self-incrimination is valid, lawyers for the N.J. Legislative Select Committee on Investigation said in a brief.
The lawyers said the relevant statute, N.J.S.A. 52:13-3, authorizes grants of immunity only in connection with oral testimony, not document production. Even then, it’s not clear whether the committee could grant anything more than “simple use immunity,” which doesn’t trump Fifth Amendment protection, they added.
Jacobson had invited the committee to brief the immunity issue after a March 11 hearing on motions by Kelly, a former aide to Gov. Chris Christie, and Stepien, his campaign manager, to quash document subpoenas served on them.
Jacobson had also questioned whether the committee has the authority to enforce its own subpoenas through the contempt power, which would make judicial intervention unnecessary.
But the lawyers said N.J.S.A. 52:13-3 merely provides that uncooperative witnesses “shall be guilty of a misdemeanor,” and even that is inapplicable to document subpoenas.
They also noted that the committee, according to subsection 5 of the statute, lacks contempt power because it was created by concurrent resolution, which doesn’t require the governor’s signature, rather than a joint resolution, which does.
The court, by contrast, may enforce the subpoenas under N.J. Court Rule 1:9-6 and the Declaratory Judgment Act, the lawyers said. And although there’s no known precedent, the Supreme Court “has indicated that it is appropriate for the courts to assume jurisdiction” over legislative subpoena disputes.
“In sum, the Committee has submitted itself to this Court’s jurisdiction not only because its own powers to enforce its subpoenas are unclear and untested, but also because it is in the public interest for this Court as a neutral arbiter to decide these important constitutional issues,” wrote Anthony Bocchi and Leon Sokol of Sokol, Behot & Fiorenzo in Hackensack, local counsel for the committee, whose lead attorney is Reid Schar of Jenner & Block in Chicago.
Also on Monday, the committee—in response to Stepien’s contention that it had orally amended its claims without supporting documentation—publicly released additional emails from Stepien; David Wildstein, the former Port Authority staffer who allegedly ordered the George Washington Bridge lane closures at Kelly’s behest; William Baroni Jr., the agency’s former deputy executive director; and others.
The emails, dating as far back as September, apparently kept Stepien up to date about the lane closures, subsequent inquiries by a Wall Street Journal reporter and Baroni’s November appearance before state lawmakers for questioning.
Also released were similar messages involving Kelly.
The committee lawyers say the language of the messages indicates there are other materials still out there that would be responsive to their subpoenas.
Lawyers for Kelly and Stepien say Monday’s brief represents an about-face.
“They changed positions,” says Kelly’s lawyer, Michael Critchley of Critchley, Kinum & Vazquez in Roseland.
“They’ve threatened people with contempt at the outset, and now they’re backpedaling,” he says, pointing to the fact that the Assembly’s investigative committee, before it merged into the current committee, held Wildstein in contempt for invoking his Fifth Amendment right and referred the matter to the Mercer County Prosecutor’s Office.
Critchley and Stepien’s attorney, Kevin Marino of Marino, Tortorella & Boyle in Chatham, say the committee in fact has immunity authority.
“There isn’t any question that they have the power to grant…immunity,” which is the only way to compel document production without violating the Fifth Amendment, Marino says.
He argues N.J.S.A. 52:13-3 authorizes immunity because responding to the subpoenas require the witnesses to authenticate them under oath, which amounts to testimony.
Marino adds that the committee doesn’t “have a single document suggesting that Mr. Stepien had anything to do with the planning or execution of these lane closures, or any attempt to conceal the reasons for them.”
In letters to the committee’s lawyers Monday and Tuesday, Marino demanded to know when the committee’s vote took place approving public release of the latest emails. He says the public release without a committee vote would have been unauthorized and make those responsible guilty of a disorderly persons offense under N.J.S.A. 52:13E-8.
Kelly’s and Stepien’s briefs are due March 24.
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