April 10 (Bloomberg) -- Two former top aides to New Jersey Governor Chris Christie don’t have to give documents about the George Washington Bridge lane closings to state lawmakers, a judge ruled, setting back the legislature’s probe into who ordered the traffic tie-ups and why.
Superior Court Judge Mary Jacobson said yesterday that forcing Bridget Anne Kelly, an ex-deputy chief of staff, and William Stepien, a former Christie campaign manager, to turn over e-mails and other papers subpoenaed by a legislative committee would violate their constitutional rights against self-incrimination. If lawmakers want the documents as they probe who snarled traffic in Fort Lee, New Jersey, they can give the pair immunity, she said.
“If the committee chooses this route, Mr. Stepien and Ms. Kelly would have to comply with the subpoenas in their entirety to avoid being held in contempt,” Jacobson said in a 98-page opinion issued in Trenton.
The committee’s probe, led by attorney Reid Schar, is in a critical phase. Schar claimed Kelly and Stepien are key to answering questions about the lane closures. Jacobson ruled that the committee failed to show that it was engaged in more than a “fishing expedition” when the subpoenas were issued in January.
Kevin Marino, Stepien’s attorney, applauded the dismissal of a “frivolous lawsuit to enforce a clearly invalid subpoena.”
An investigation commissioned by Christie concluded on March 27 that he had no advance knowledge of a plot to close the lanes by Kelly and David Wildstein, then a Christie ally at the Port Authority of New York and New Jersey, which runs the bridge. They sought to punish the mayor of Fort Lee for unknown political reasons through tie-ups from Sept. 9 to Sept. 12, according to the report by the law firm Gibson Dunn & Crutcher LLP and its lead attorney, Randy Mastro.
The scandal has damaged Christie’s popularity as he weighs a Republican run for the White House in 2016.
The opinion, like Mastro’s report, “represents a complete vindication of Bill Stepien,” Marino said in a statement. “In its zeal to achieve a blatantly political goal having nothing to do with Mr. Stepien, the committee disregarded the fundamental constitutional right of this innocent man.”
Michael Critchley, Kelly’s attorney, said the decision “provides a free tutorial on the protections the Fifth Amendment affords all citizens.” In a statement, he said the “thorough and well-reasoned” opinion is “a complete rejection of the committee’s attempt to strip Ms. Kelly of her constitutional rights.”
In persuading the judge to dismiss a pair of committee lawsuits seeking to enforce the subpoenas, Kelly and Stepien said they feared a criminal prosecution by U.S. Attorney Paul Fishman, who is investigating the events at the bridge.
Assemblyman John Wisniewski, co-chairman of the committee, said the panel will consider its options.
“As we’ve said before, there’s more than one method to gather information in an investigation,” Wisniewski said in a statement.
Almost 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.”
Jacobson, saying that “the unusual procedural posture of this case forces the court into largely uncharted waters,” said most judges confront a witness refusing to turn over documents sought in criminal investigations. Kelly and Stepien face a legislative probe.
The judge said the main point of contention was whether committee’s “overbroad” requests for e-mails, documents, communications and phone records amounted to the “thought process” in testimony that can’t be compelled at risk of self-incrimination.
The committee failed to meet its legal burden to show with “reasonable particularity” that it’s a “foregone conclusion” that the subpoenaed documents exist, Jacobson said. The subpoenas were meant to use Kelly and Stepien as “information-gatherers for the committee’s own investigative purposes.”
The committee could still issue new, narrower subpoenas, she said, shooting down Schar’s argument that the former aides have a legal duty to turn over documents because the government is required to keep their records.
“It is difficult to see how Mr. Stepien and Ms. Kelly have waived any right to the act-of-production privilege solely by virtue of the requirements placed upon agencies to maintain records,” Jacobson wrote.
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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