March 22 (Bloomberg) -- Two former aides to New Jersey Governor Chris Christie say state lawmakers probing manufactured traffic jams at the George Washington Bridge can give them immunity from prosecution for documents they refuse to produce.
Bridget Anne Kelly, the ex-deputy chief of staff, and William Stepien, a former campaign manager, asserted their constitutional right against self-incrimination rather than turning over documents to a committee of lawmakers investigating lane closures that snarled traffic in Fort Lee, New Jersey.
The committee sued both ex-aides to compel them to produce the documents, and the judge asked both sides to say whether lawmakers can grant immunity to witnesses who take the Fifth and enforce compliance by citing a witness for contempt. While the committee claims the law is unsettled, lawyers for Kelly and Stepien derided that position as dishonest and nonsensical.
“Despite its newly minted confusion over whether it has power to grant immunity, the committee unequivocally has that power,” Kevin Marino, Stepien’s attorney, said in a filing in state court in Trenton, New Jersey. By saying it can’t compel document production by granting immunity, the committee engaged in “an exercise in intellectual dishonesty,” he wrote.
The filings are the final submissions before Superior Court Judge Mary Jacobson rules on committee lawsuits seeking to overcome Fifth Amendment objections of Kelly and Stepien. They are the only two of more than 30 witnesses to plead the Fifth over the production of documents. David Wildstein, a former Christie appointee, pleaded the Fifth rather than testify.
Kelly and Stepien say they fear incriminating themselves as U.S. prosecutors pursue a criminal probe of lane closures from Sept. 9 to Sept. 12, which have tarnished Christie, a Republican, as he weighs a White House run in 2016. Fort Lee’s mayor, a Democrat, has said he believes the tie-ups were payback for him not endorsing Christie’s re-election campaign last year.
The committee’s probe, led by attorney Reid Schar, is in a critical phase. Schar has argued that Kelly and Stepien are key to the question of who ordered the shutdown and why. Marino claims Stepien is an innocent man who had nothing to do with the tie-ups, and e-mails released by Schar so far prove that.
Jacobson asked about two types of immunity. One was “use immunity,” which means prosecutors can’t use a witness’s words against him but can build leads against him based on his words.
She also asked about “derivative-use immunity,” which means prosecutors can’t use a witness’s words against him or develop leads based on his testimony. If a witness with derivative-use immunity is indicted, prosecutors must show the evidence was developed independently of his words.
Kelly attorney Michael Critchley argued in his filing that the committee’s “attempt to surrender the power” to grant immunity is “contrary to law and defies common sense.”
Lawmakers know that if the judge “acknowledges that the committee has the power to grant derivative-use immunity, the U.S. Attorney’s Office may intervene and terminate this legislative inquiry,” Critchley argued.
Marino argued that New Jersey law grants the committee “power to confer use and derivative-use immunity for the production of documents.” He said that when the federal or state government “compels a witness to testify pursuant to a grant of immunity, both state and federal prosecutors must respect that immunity grant.”
Both Critchley and Marino derided Schar’s position that the committee can’t cite a witness with contempt for failing to comply with a subpoena. They said the Assembly Transportation Committee, which preceded the current investigative panel, cited Wildstein for contempt when he refused to testify.
“The committee’s willingness to play fast and loose with individuals’ constitutional rights to suit its investigative ends is, to say the least, troubling,” Marino wrote.
Wildstein was Christie’s second-highest appointee at the Port Authority of New York and New Jersey, which runs the bridge. He resigned in December.
Critchley and Marino both argue that the committee failed to show it’s a foregone conclusion that the subpoenaed documents exist, are in their client’s possession, and are authentic.
Nearly a month before the lane closures, Kelly sent an e-mail to Wildstein, saying: “Time for some traffic problems in Fort Lee.” Wildstein replied: “Got it.” Critchley argued Schar can’t prove the authenticity of the e-mail.
“Ms. Kelly has never conceded -- nor is she obligated to concede -- that she created, caused to be created, possessed or did not possess, or in any way confirmed that the demanded documents are responsive to the subpoena,” Critchley wrote. “Simply put, the committee cannot authenticate the demanded documents without Ms. Kelly.”
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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