Randy Mastro of Gibson Dunn ()
Even before its report was final, Gibson, Dunn & Crutcher’s probe of Gov. Chris Christie’s possible role in the Bridgegate scandal had been called into question by New Jersey politicians and other critics for its presumed bias.
The New York firm was after all hired by Christie to conduct the internal investigation as a preemptive strike. And the probe is headed by Gibson Dunn partner Randy Mastro, who twice worked for Christie ally Rudy Giuliani in New York—as an assistant federal prosecutor and then as deputy mayor.
But Mastro, at a press conference on Thursday announcing the firm’s report, said, “We are lawyers doing an independent investigation. It serves no one’s best interest…to have done anything other than to try to get to the truth.”
New Jersey lawyers who make a specialty of internal investigations for corporations or public entities share that view, saying allegations of conflicts of interest are par for the course.
“An independent investigation conducted by a lawyer is like nothing else a lawyer does for a client,” says Edwin Stier, of New York-based Thacher Associates. “In every other context, a lawyer is an advocate for the client.”
“There is an inherent conflict because you’re producing a report that is examining the very entity that just hired you,” says John Lacey of Connell Foley in Roseland, whom Rutgers University hired in 2012 to investigate the school’s response to basketball coach Mike Rice’s alleged mistreatment of players.
But Lacey says Gibson Dunn has an “excellent reputation” and those who criticized the report before it was public were “being just as unfair as they’re suggesting the report is.”
After The New York Times reported last Monday that investigation was expected to clear Christie, state Assemblyman John Wisniewski, D-Middlesex, who co-chairs the N.J. Legislative Select Committee on Investigation, called Gibson Dunn’s efforts questionable, not only because it is working for the governor but also because key figures were not interviewed—notably Christie campaign manager Bill Stepien, fired Christie deputy chief of staff Bridget Kelly and former Port Authority staffer David Wildstein.
All three have asserted their Fifth Amendment privilege against self-incrimination, so neither Wisniewski’s committee nor the U.S. attorney, who is conducting a parallel investigation, have been able to interview them either.
Mastro said at Thursday’s press conference that the report was “based on a thorough and exhaustive review” and “we believe we got it right.”
Lawyers who conduct internal probes say numerous factors distinguish Gibson Dunn’s probe from a typical one for a corporate client.
Usually, the matters under review have not been made public and the entity hiring the lawyer is a board and not the executives under investigation. In this case, there is no hiring board as a buffer.
“If you’re really going to do a truly independent investigation, you’ve got to work through some really knotty issues…before you even begin the process,” Stier says. For Mastro, one big question is: who is the client? Is it Christie, the administration or the taxpayers?
Even if the investigator has a law enforcement background, the public will assume the report will be “shaded” unless a clear procedure is laid out from the beginning, says Stier, an ex-prosecutor who in 1983 was selected to conduct an internal investigation into the Three Mile Island Nuclear Generating Station following the 1979 partial meltdown.
First, the investigator must document what each witness says—and give witnesses a chance to review transcripts before swearing to their accuracy. Second, the report must clearly lay out that evidence as well as the analysis, not just conclusions.
“In the report I want a skeptical reader…to come away with the ability to look at the evidence and analyze it for themselves,” Stier says. And the conclusion should be the same, he adds. “It shouldn’t make any difference whether I write this report or you write this report.”
Falling short could have reputational repercussions that affect the lawyer’s future business, he adds.
Whether Mastro’s investigation followed such procedures isn’t clear. Transcripts of the interviews conducted of 70 people were not included in the 360-page report.
The Times reported that Gibson Dunn racked up more than $1 million in fees at $650 per hour, and part of the criticism of the report, including an editorial in The Star-Ledger, was that taxpayers are footing the bill.
In the end, the investigator’s authority over the report must be clear. “They’re going to be my conclusions, not that of the client,” says Lacey, a former assistant U.S. attorney under Samuel Alito, now an associate U.S. Supreme Court justice, and Michael Chertoff, who became Homeland Security secretary.
“I would not expect anything different” from Gibson Dunn, Lacey adds. “The facts are the facts, and a good investigator is not going to change the facts.”
Any shortcoming, perceived or real, could come back to haunt the lawyer.
Lacey has firsthand experience from his work on the Rutgers investigation.
Lacey, in his report, found “sufficient evidence” that some of Rice’s conduct “did ‘cross the line’ of permissible conduct,” amounted to “harassment or intimidation” under Rutgers policy, and could reasonably be determined to “embarrass and bring shame or disgrace to Rutgers in violation of Coach Rice’s employment contract[.]”
Still, when video footage of Rice’s antics was made public months after Lacey’s findings, Rutgers officials claimed the report was part of the reason they initially decided to suspend rather than terminate the coach.
“We pay dearly for good advice, and I’m not sure we got good advice,” Board of Governors Chairman Ralph Izzo said at the time.
For Gibson Dunn, public and political pressures “certainly can exist,” says Mark Rufolo of Stern & Kilcullen in Florham Park, who has investigatory experience.
“It’s not often that you’re hired by the precise entity that you’re investigating,” says Rufolo, who spent 16 years as an assistant U.S. attorney before joining the firm.
“What’s most important is that you do a good job,” he adds. “A whitewash is not in anybody’s best interests. It may be tempting to think so, but it’s not.”
The question arises whether Mastro was tasked with investigating Christie himself or the administration in general, Rufolo says.
“The evidence, hopefully, to some extent, will speak for itself,” and a whitewash would be “fairly easy to detect,” he says. “I think that becomes more important than any conclusion he’s going to draw.”
As for the absence of Kelly, Wildstein and Stepien from Gibson Dunn’s report, Lacey says “the unavailability of witnesses is not unusual.”
“In these cases, the investigator will attempt to gather as much information as possible…from alternative sources,” Lacey adds.
Robert Bonney Jr. of Lomurro Davison Eastman & Munoz in Freehold, who devotes part of his practice to internal investigations, says, “You have to question the degree to which that investigation could obtain information,” given the uncooperative witnesses and lack of subpoena power, though phone and email records are “very significant.”
Stier says one way to access information is to share your findings with prosecutors and regulators doing their own investigations. Though it requires obtaining a client’s privilege waiver, it often prompts those investigators to reciprocate by sharing their own information, he says.
“I’ve done this with some pretty tough law enforcement agencies, and it’s worked,” Stier “You need the authority of the client to be totally transparent.”
Contact the reporter at firstname.lastname@example.org.