March 11 (Bloomberg) -- A New Jersey judge questioned an attorney for state lawmakers about why two ex-aides to Governor Chris Christie must comply with subpoenas seeking documents related to the George Washington Bridge traffic jams.
Bridget Anne Kelly and William Stepien asserted their constitutional right to silence, saying that producing documents would harm them in a criminal investigation by U.S. prosecutors. Kelly’s e-mail saying “Time for some traffic problems in Fort Lee” came almost a month before Christie allies directed the shutdown of access lanes to the bridge from Sept. 9 to Sept. 12.
Superior Court Judge Mary Jacobson today asked Reid Schar, a lawyer for a legislative committee investigating the lane closings, whether the subpoenas were overbroad in seeking documents, e-mails and texts. Documents from Kelly and Stepien might shed light on who ordered the tie-ups and why -- questions that may imperil Christie’s possible White House bid in 2016.
“These subpoenas are not fishing expeditions,” Schar said in court in Trenton, New Jersey, where he sued to enforce the requests. “The subpoenas are the type that are routinely issued in legislative investigations around the United States.”
After a three-hour hearing, Jacobson said Schar must provide more information by March 17, and Kelly and Stepien must reply by March 24. She said she would rule as soon as possible after that. During the session, she asked Schar how she could enforce subpoenas that seek a broad range of possible records beyond e-mails already known to the committee.
“You say it’s clear that additional e-mails and texts went back and forth,” the judge said. “You’re asking me for much more. Are you asking me to enforce only part of the subpoenas? I don’t know that judicial surgery is appropriate.”
Schar said the committee’s position is “most strongly grounded in e-mails and texts.”
Jacobson replied: “What do you want the court to do? The subpoena goes well beyond that.”
Christie, a Republican, said Jan. 9 that he fired Kelly, a deputy chief of staff, and cut ties to Stepien, his campaign manager, after the release of e-mails and texts relating to the lane closings. The governor has said he had nothing to do with the tie-ups, which snarled traffic in Fort Lee, New Jersey.
The Democratic mayor of Fort Lee, Mark Sokolich, has said he believes the traffic jams were payback for his not endorsing Christie’s re-election last fall. Sokolich and others involved in the scandal have been interviewed by prosecutors working for U.S. Attorney Paul Fishman. Stepien and Kelly argue that they are imperiled by Fishman’s probe.
Stepien’s attorney Kevin Marino argued that Schar hasn’t shown he has “reasonably particularized knowledge” that the documents subpoenaed even exist. He read aloud five e-mails strings involving Stepien that the committee made public.
“They are trying to enlist Mr. Stepien as an agent of the committee to help them,” Marino said. “They don’t know that an e-mail exists. They don’t know that Mr. Stepien has it. They say they have five e-mails. Those e-mails don’t permit the fair inference that there are other documents. It’s not a foregone conclusion.”
Kelly sat in the front row of the courtroom with her attorney, Michael Critchley. He said compelling the production of records would be like forcing her to testify against herself.
The judge asked Critchley about the “Time for some traffic problems in Fort Lee” e-mail. The committee got it from David Wildstein, a former Christie ally at the Port Authority of New York and New Jersey, which runs the bridge. Wildstein resigned in December.
“I do not concede that my client sent this,” Critchley said. “The government has to provide that. If I concede it, it would be a link in the government’s chain of evidence. On its face, does the document relate to the George Washington Bridge? No. On its face, does it relate to the reduction of three lanes to one? No.”
Critchley said the committee can’t prove Kelly sent it.
“Well, Mr. Wildstein,” Jacobson said.
“I haven’t seen an affidavit from Mr. Wildstein,” Critchley said. “They can’t authenticate it. They can’t.”
The judge questioned Critchley at length about whether the committee could grant immunity to Kelly. Critchley said that doing so would cause problems for the committee’s investigation as it coordinates its probe with U.S. prosecutors.
After the hearing, Critchley and Marino spoke to dozens of reporters outside. Marino said Stepien chose not to attend.
“I feel very strongly that Bill Stepien is an innocent man who is being ensnared by ambiguous circumstances,” Marino said. “Mr. Stepien has had his life upended.”
The committee, he said, failed to produce evidence that it’s a foregone conclusion the documents exist, that they are authenticated, and that they’re in Stepien’s possession.
“That’s the test,” Marino said. “When all of the politics, all of the partisanship, gets stripped away, that’s what we’re left with. That’s what we’re here to defend. This case is much more significant than what you all chose to call Bridgegate. This is about the ability of the government to call someone to be a witness against themselves.”
Kelly stood behind Critchley. When he was asked how she was doing, she began weeping.
“She’s a 42-year-old single mom with four children trying to make do in a difficult time,” the lawyer said. “She’s unemployed, doing her best to try and seek employment.”
Asked if she was afraid of federal prosecution, Critchley said: “We’re not afraid of anything. We are innocent.”
The cases are New Jersey Legislative Select Committee on Investigations v. Kelly, MER-L-350-14, and New Jersey Legislative Select Committee on Investigations v. Stepien, MER-L-354-14, Superior Court of New Jersey, Mercer County (Trenton).
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