U.S. prosecutors and New Jersey legislators face hard choices about whether to give immunity to former loyalists to Governor Chris Christie to get them to say what they know about the George Washington Bridge lane closings.
The lawmakers and New Jersey U.S. Attorney Paul Fishman are investigating who ordered access lanes closed from Sept. 9 to Sept. 12 in Fort Lee, New Jersey, a scandal that hurt Christie’s popularity as he eyes a Republican run for the White House.
They have to decide whether shielding the loyalists from prosecution in exchange for their testimony is the best path to the truth about whether a crime was committed -- and by whom.
Christie commissioned a report by lawyers at Gibson Dunn & Crutcher LLP, which concluded he had no knowledge that others tied up traffic to punish the Democratic mayor of Fort Lee.
Fishman’s prosecutors have taken grand jury testimony, subpoenaed documents and reviewed material gathered by lawmakers. Former prosecutors say Fishman will be wary of granting immunity as he looks for criminal conduct.
“The government doesn’t like to give immunity if they can avoid it, because witnesses at trial can be attacked as having been bought, and they can’t be trusted,” said Peter Zeidenberg, who helped prosecute I. Lewis “Scooter” Libby, former vice president Dick Cheney’s chief of staff. “But immunized witnesses testify all the time, and people are convicted all the time based on their testimony, as long as it’s corroborated.”
If Fishman decides crimes were committed, he won’t want to immunize those most responsible for the tie-ups, ex-prosecutors said. Rather, he’d prefer to work up the chain of command.
“An attorney who comes in early on in an investigation who says, ‘My client can open the door to these other eight episodes,’ has a lot more bargaining power because they have a lot more value as a witness,” said Richard Owens, a former federal prosecutor in New York. “If it’s late in the day and there are already other sources of information available to them, prosecutors might not strike that bargain so easily.”
Immunity can make it appear a U.S. attorney gave a free pass, said David Siegal, an ex-federal prosecutor in New York.
“We rarely gave out immunity,” said Siegal, of the law firm Haynes & Boone LLP. “Immunity is stepping blind into the void. Once a witness has immunity, they generally can’t go to jail and can’t be prosecuted.”
The Gibson Dunn report blamed the tie-ups on Bridget Anne Kelly, a former deputy chief of Christie’s staff, and David Wildstein, once a high-ranking official at the Port Authority of New York and New Jersey, which runs the bridge. Gibson Dunn didn’t speak to Kelly, Wildstein and several other key figures.
The scandal gained prominence on Jan. 8 with the release of an Aug. 13 Kelly e-mail that said: “Time for some traffic problems in Fort Lee.” Wildstein replied: “Got it.” He was at the bridge on Sept. 9 to oversee the lane closings.
Wildstein asserted his constitutional right against self-incrimination when lawmakers subpoenaed his testimony. Kelly and former campaign manager William Stepien did so when lawmakers sought their documents. A state judge ruled last month that those subpoenas were overbroad and unenforceable. Kelly and Stepien properly asserted their Fifth Amendment rights, which lawmakers could overcome by granting immunity, the judge said.
“Granting immunity is often the only way an investigatory body may obtain useful information from a witness who reasonably fears incrimination,” Superior Court Judge Mary Jacobson ruled.
Wildstein’s lawyer, Alan Zegas, has said “evidence exists” that Christie knew of the tie-ups. Wildstein would talk if given immunity, Zegas said. Kelly’s attorney Michael Critchley said her evidence “could be critical” in verifying “two distinct versions” of events offered by Christie and Wildstein. Gibson Dunn’s report assailed Wildstein and Kelly as liars.
“A preemptive strike to isolate Ms. Kelly and impugn her credibility is not surprising,” Critchley said. He said Fishman is conducting “the only credible investigation,” and she would tell the truth with “appropriate procedural safeguards.”
The website Main Justice reported that Wildstein spent several days at the U.S. Attorney’s Office in Newark, New Jersey. It’s unclear whether prosecutors may charge Wildstein with a crime or grant him immunity. Fishman and Zegas didn’t return calls seeking comment.
“Both sides ultimately will face difficult choices,” said Joseph Hayden, a prominent New Jersey defense lawyer. “Cases are made on the basis of witness testimony, not documents. The witness testimony in some cases will have to be purchased. The hard question for both sides is what is the price.”
Fishman has several avenues to secure witness testimony. If a witness takes the Fifth Amendment, prosecutors might ask a judge to compel his testimony through an immunity grant. If the witness refused to talk, the judge could jail him for contempt.
Witnesses also could negotiate an immunity agreement, which typically would say that prosecutors couldn’t use their testimony against them, or evidence derived directly or indirectly from their evidence. Prosecutors could charge a witness only after showing the case was built independently from the compelled evidence.
Prosecutors might negotiate an immunity agreement after a defense lawyer outlined what a witness might say. Witnesses meet prosecutors after signing an agreement that protects them unless they lie. That could lead to a prosecution.
Defense lawyers may seek a more sweeping non-prosecution agreement, while the government may insist that their client plead guilty and cooperate in exchange for a recommendation of leniency at sentencing, Owens said.
“That often leads to a standoff because the person who wants immunity may not think they did anything wrong, and the prosecutors may think that they did,” Owens said.
A prosecutor’s office, Siegal said, “never wants to make it look like it gives anybody a free pass. Immunity is a free pass, and a cooperation agreement is not because it typically entails at least some prospect of punishment for the witness, albeit less than they would have gotten had they not cooperated.”
In her opinion on the Kelly and Stepien subpoenas, Jacobson emphasized that the 12-member legislative committee has the ability to grant immunity to witnesses for testimony or documents.
While “any incriminatory evidence produced by defendants under a grant of immunity would only be barred from being used against them in a subsequent criminal prosecution, it could nevertheless be freely used against third parties,” the judge said. If Stepien were given immunity, “the evidence he turns over could nonetheless be used in a criminal prosecution against Ms. Kelly, and vice versa.”
Still, it’s unlikely that the legislative committee will grant immunity, said attorney Stephen Ryan, who was a federal prosecutor in Washington.
“If anyone thinks the U.S. attorney is actually going to make a case, it’s politically more dangerous for the Legislature to interfere with the ability to make that case,” said Ryan.
The committee doesn’t want to immunize witnesses “because it doesn’t want to hamper Paul Fishman,” said Siegal. “If the committee immunizes those witnesses in order to get the evidence, that could make it extremely difficult, if not impossible, to prosecute them.”
The committee’s co-chairman, Assemblyman John Wisniewski, said the panel has “taken steps to ensure that we don’t interfere” with Fishman’s investigation.
Immunity “is not an option that we’re rushing to, because we’ve always made it clear that we want to work cooperatively with the U.S. Attorney’s Office, and we think there are lots of ways we can proceed without going to that significant step,” he said. “Nevertheless, it’s an option we still possess and haven’t taken off the table.”
The committee, which has subpoenaed four witnesses to testify next month, will probably work into the summer, he said.
“This is an investigation about the Port Authority and how a person in the governor’s office came to abuse their authority to redirect those toll lanes,” he said.
Lawyers predict that the probes will go for several months.
“Legally, this will be a marathon, not a sprint, before an ultimate determination is made as to whether or not any federal charges are made,” Hayden said. “It will be at least many months from now.”