New Jersey lawmakers investigating a political payback scandal ensnaring Gov. Chris Christie's administration may need to get a judge to force two key figures to turn over subpoenaed documents.
Christie's two-time campaign manager and a deputy chief of staff have refused to turn over text messages, emails, personal calendars and other documents related to a traffic-blocking operation near the George Washington Bridge that caused massive backups, apparently for political retribution. Their lawyers have asked that the subpoenas be withdrawn.
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The legislative panel's lawyer, Reid Schar, is reviewing options to enforce the subpoenas. Committee co-chairs Loretta Weinberg and John Wisniewski, both Democrats, said Wednesday no decision had been made on how to proceed.
"We feel we have valid reasons for issuing the subpoenas and they have an obligation to comply," said Wisniewski.
Legal experts say the lawmakers may have to ask a judge to settle the dispute.
George Thomas, who teaches criminal law at Rutgers University law school in Newark, said lawyers for the political operative Bill Stepien and fired Deputy Chief of Staff Bridget Kelly have made "plausible" claims to protect the documents.
But Morton Rosenberg, a retired legal scholar who wrote a paper on congressional subpoenas, said it's difficult to get a subpoena thrown out so long as there is "some credible grounds and the jurisdiction of the legislative committee is appropriate."
'Time for some traffic problems'
It may not get that far. The U.S. attorney's office could step in at any time if it feels its own grand jury investigation into the lane closings is being impeded. So far, the parallel probes have been moving forward cooperatively.
The legislative panel could rewrite the subpoenas before a judge gets to decide, Thomas said. Or, it could hold Stepien and Kelly in contempt of the Legislature and refer charges to a local prosecutor.
Separate claims made by Stepien lawyer Kevin Marino and Kelly lawyer Michael Critchley ask that the subpoenas be withdrawn on grounds that they violate their clients' Fourth and Fifth Amendment rights.
The Fifth Amendment protects against compelled self-incrimination. While it generally applies to testimony, legal experts say the privilege can be extended to written and electronic records if complying could lead to a requirement to testify. The Fourth Amendment protects against overly broad subpoenas.
The subpoenas to Stepien, Kelly and the others seek a variety of personal documents including diaries, calendars and cellphone records beginning Sept. 1, 2012, relating to the lane closings.
Another key figure in the saga, former Christie loyalist David Wildstein, invoked his right against self-incrimination and refused to testify under oath before the legislative panel. He is appealing a contempt charge.
Wildstein turned over a trove of documents, some heavily redacted, in response to a legislative subpoena. Among them was an email from Kelly saying, "time for some traffic problems in Fort Lee," that apparently set the lane-blocking operation in motion.
Fort Lee is the town at the base of the bridge where traffic was tied up for hours over four days while the lanes were closed. It appears the lane closings were ordered by Christie loyalists to send a message to the town's Democratic mayor.
Eighteen other people and organizations close to the Republican governor and possible 2016 presidential candidate also have been subpoenaed by the legislative panel. Most have sought more time to comply.
Wisniewski said the panel expects the subpoenas to overlap, so some of the information that would have been provided by Stepien and Kelly may become available through another source, such as forwarded emails or multiple text message recipients.