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12:56 pm
Tue March 11, 2014

Ex-Christie Aides Seek To Quash Subpoenas In Bridge Hearing

Lawyers for Bridget Kelly and Bill Stepien, two former aides to New Jersey Governor Chris Christie, are in court today. They’re trying to persuade a judge not to force them to turn over private communications that could incriminate them in the investigation into the George Washington Bridge lane closing.

The decision is important because Kelly and Stepien might have evidence that could clarify who orchestrated and knew about the September bridge closings, which led to major traffic issues. The lawyers will cite the Fifth Amendment right against self-incrimination.

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Transcript

ROBIN YOUNG, HOST:

It's HERE AND NOW.

And it was billed as a big courtroom showdown in the so-called Bridgegate scandal. Today, lawyers for two former aides to New Jersey Governor Chris Christie were in court, trying to convince a judge to not force their clients to turn over text messages and emails sought under subpoena by lawmakers. The question the lawmakers are investigating - did Bridget Anne Kelly and Bill Stepien orchestrate those George Washington Bridge lane closures as political punishment of a Democratic mayor?

Their lawyers are citing the Fifth Amendment which protects people from incriminating themselves, which they say handing over emails would do. In a few minutes, we'll get the legal angle. Are there precedents for this claim? But first, Christopher Baxter is a reporter for The Star-Ledger in New Jersey. He was at the hearing. So were there the fireworks, Chris, that were expected?

CHRISTOPHER BAXTER: Well, I'm a little out of breath. I just made it from over there to join you, Robin.

YOUNG: Well, thank you.

BAXTER: In terms of fireworks, I mean, I think if you're a buff on the Constitution, it was probably pretty interesting, although it went almost three hours and certainly got very in depth into those legal analysis. I think the basic point here comes down to the Fifth Amendment. Now, obviously, the Fifth Amendment itself deals with self-incrimination for testimony. But what we're dealing with here is, does this act of turning over these records, the act itself somehow testify on behalf of Bridget Anne Kelly and Bill Stepien, that they were involved or, you know, might put them at greater risk of prosecution?

So what we saw was the committee's attorneys saying, look, we made a very specific request in the subpoena for records related to the lane closing. We have records already in our possession that show that these two were involved, and it's not a big leap to think that there are other communications out there that we should be able to have access to.

Now, the attorneys for Ms. Kelly and Mr. Stepien argue you can't make that leap. You don't know. You're assuming that there's other records out there, and by us turning them over, the act of turning them over, we are not - we had, you know, our clients have to use their mind, have to search their records, identify the records that are responsive, and then authenticate to you that these records do indeed have something to do with the lane closures. And, therefore, you know, they shouldn't have to turn them over.

YOUNG: And, therefore, they'd be incriminating themselves.

BAXTER: That's right. It's a little complicated, but it's about the act of actually searching for, identifying and authenticating the records and then turning them over. And there is some precedent for that, although it's narrow and it's very complicated. And even the...

YOUNG: All right. We're going to talk about it. Yup. Yeah.

BAXTER: Yeah. The judge today, Mary Jacobson, state superior court judge, she asked a lot of questions. She was very inquisitive, really gave no indication to which way she was leaning but, you know, did show both sides that she was, you know, not quite convinced on either side of the table of what they were saying but, at the end, made the note, look, this is very complicated. I know you want an answer soon, but I'm going to take my time.

YOUNG: Well, Chris Baxter, did anyone suggest an alternative? In other words, did anyone say, well, how about if you just say, oh, give me all of your emails for two years? And in that way, it's less focused, as you said.

BAXTER: It was actually the judge herself who suggested the alternative, and that was - to the committee, she said, well, why can't you just grant these two immunity? Doesn't that take care of all these issues of self-incrimination? The committee believes that under the state law and the statutes that exist, they may not have the power to grant immunity. And even if they did, it's not clear how that would affect the ongoing federal criminal prosecution. And they believe that even if they offer that immunity, Ms. Kelly and Mr. Stepien would still object.

YOUNG: OK. Well, as you said, a three-hour hearing today and the judge is now retired to make her decision, and we'll wait to hear that. But we want to pick up some of these legal questions. So, Christopher Baxter with The Star-Ledger in New Jersey, thank you.

BAXTER: My pleasure.

YOUNG: And let's find out what some of these legal precedents are. What is declaring immunity have to do with all of this? Let's bring in Brigid Harrison, professor of political science and law at Montclair State University. Hi, Professor.

BRIGID HARRISON: Hi, Robin.

YOUNG: And let's start with the 2000 Supreme Court case U.S. v. Hubbell. This is the question of immunity. Now, everybody, just be patient, I'll get through it. This was the Clinton operative Webb Hubbell. He was targeted as part of the Whitewater scandal. He also plead Fifth Amendment, right, against self-incrimination in, you know, when he was asked to put forth materials. But then he struck a deal to turn over the records that were being asked for in return for immunity.

But then, the prosecution in that case still tried to charge him, and he took it to the Supreme Court, which upheld his immunity deal. They said, no, you struck a deal. He was given immunity if he turned over records. You have to hold to that. How might that apply in this case in New Jersey?

HARRISON: Well, this case is particularly important because in this ruling, the court held that Fifth Amendment privilege against self-incrimination protects witnesses not only from being compelled to testify but from actually being compelled to disclose the existence of incriminating documents that the government isn't able to produce without cooperation from a witness.

So in other words, when Mr. Hubbell turned over these various documents, it gave the government the ability to charge him with tax evasion and mail fraud and wire fraud, which they did, and they handed down a 10-count indictment.

And the court's ruling, that indictment was rescinded, but the court ruled more broadly that the government essentially can't compel witnesses to produce those documents. Now, what is interesting about this case that Judge Jacobson heard earlier today, this three-hour-long testimony, is that Mr. Stepien's attorney is using this Hubbell argument, right, that he shouldn't be compelled to disclose this incriminating evidence. But he is saying that, really, Mr. Stepien is an innocent man. And if he does produce these documents, it could ensnare him in what the lawyer calls ambiguous circumstances of a criminal prosecution.

So what that means is that he is contending innocence but also saying that he doesn't want to self-incriminate essentially because the circumstances are ambiguous.

YOUNG: Whereas Bridget Kelly's case is a little bit different, because she has the now infamous email that's already been seen: Time for some traffic problems in Fort Lee. Her lawyer might be thinking, well, she might be a little more involved and so she would actually incriminate herself by giving the emails. Just quickly, this - do you have a sense that there will be an immunity deal so that the emails can be read and maybe bigger fish can be gone after in this case?

HARRISON: Sure. I mean, I certainly believe that that is this legislative committee's intention. They are not particularly interested - particularly in Bridget Kelly - much more interested in pursuing, you know, the larger, the bigger fish as it were and, of course, the biggest fish being the governor.

But the interesting thing is that as Chris Baxter just mentioned, there are two parallel investigations going on. You have these state legislative committee hearings. You also have a U.S. attorney investigation. One would result in state charges, the other federal charges. So the state legislative committee is saying we don't know that we can actually offer immunity. They certainly could offer Kelly prosecutorial immunity at the state level, but that would not provide...

YOUNG: Not at the federal.

HARRISON: ...her with immunity in the federal level.

YOUNG: Well, we're going to have to continue to follow it. Brigid Harrison of Montclair State University, thanks for helping us.

HARRISON: My pleasure.

YOUNG: It's HERE AND NOW. Transcript provided by NPR, Copyright NPR.

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