Analysis: U.S. Attorney’s Trail Shows Hoboken Charges More Serious

NJ Spotlight, Feb. 5, 2014

By Mark J. Magyar

With subpoenaed documents trickling in to investigators and a third Christie appointee taking the Fifth Amendment, legal experts are debating which charges Christie appointees are likely to face, how evidence of a coverup could bolster a corruption prosecution, and whether a RICO conspiracy charge could be used to tie together the alleged Christie administration scandals.

From a legal standpoint, Hoboken Mayor Dawn Zimmer’s allegation that Lt. Gov. Kim Guadagno transmitted a threat from Gov. Chris Christie to withhold Sandy aid from her city unless she pushed through a high-rise development represented by the law firm of David Samson, the governor’s former campaign counsel and current Port Authority chairman, is more serious than the Bridgegate allegations.

“The Bridgegate allegations could potentially be prosecuted under state law as official misconduct, but there are still a lot of dots to be connected for there to be serious liability under federal law,” said Christopher Adams, a Colts Neck lawyer who serves as vice president of the Criminal Defense Lawyers Association of New Jersey. “The Hoboken allegations are more serious. You heard nothing from the U.S. Attorney’s Office until Hoboken happened.

“Twenty-four hours after Zimmer made her allegation, members of the U.S. Attorney’s Office and the FBI met with her in their office on a Sunday,” Adams said. “Sandy is an issue of criminal bribery. There could be a number of potential crimes, not the least of which could be extortion. The idea that the state would hold up the administration of federal funds unless the governor’s office could exact some benefit for itself or for a client of Samson is very serious. There were countless criminal indictments made on a lot less than that during Christie’s years as U.S. Attorney.”

That doesn’t mean Bridgegate isn’t serious, though, and politically it could be more damaging to Christie’s 2016 presidential hopes, as five Christie appointees subpoenaed in Bridgegate already have resigned or been fired. Based on evidence contained in emails subpoenaed by the Assembly Transportation Committee, legal experts agree that at least two former Christie appointees are already facing serious charges in Bridgegate.

While misconduct for political purposes is more difficult to prove than personal corruption, Bridget Kelly, Gov. Chris Christie’s former deputy chief of staff who evidently ordered the controversial George Washington Bridge lane closures, and David Wildstein, Christie’s political enforcer at the Port Authority who is openly angling for immunity, are likely to face misconduct or similar charges punishable by up to 10 years in prison. Both Wildstein and Kelly have invoked their Fifth Amendment rights against self-incrimination, as has Bill Stepien, Christie’s former campaign manager.

Documents subpoenaed by the Legislature’s Joint Select Committee on Investigations and/or the U.S. Attorney’s Office from the governor’s office, Christie’s reelection campaign, and 17 current and former Christie appointees could be critical, legal experts said, in establishing evidence of a coverup, which would constitute awareness of guilt and, therefore, bolster the strength of any corruption case.

The failure of state officials, especially lawyers, to report or stop cases of wrongdoing that reach the level of felony crimes — which Port Authority Executive Director Patrick Foye believed to be the case with the secret closure of traffic lanes leading into the George Washington Bridge as an act of political retaliation — could be prosecuted not only as official misconduct, but also under the seldom-used “misprision of felony” statute.

And while legal experts emphasize that it is too early to judge where U.S. Attorney Paul Fishman is heading, there has been some discussion that the combination of Bridgegate and its coverup, the withholding or award of federal Sandy aid for political purposes, the firing of a county prosecutor in order to squelch an indictment of a Republican county sheriff, and the misuse of power on behalf of politically connected lawyers and developers — if proven — could be tied together in a single case.

Sam Adam Jr., the Chicago defense attorney who defended impeached Illinois Gov. Rod Blagojevich, was the first to suggest publicly that if the underlying charges can be proved, a Racketeer Influenced and Corrupt Organizations Act (RICO) case could be made by the U.S. Attorney in New Jersey similar to the RICO charge brought against Blagojevich, his governor’s office, and his campaign fundraising operation. However, RICO cases are complex and difficult to prove.

Reid Schar, the former Assistant U.S. Attorney in the Blagojevich case — who is currently serving as special counsel to the Legislature’s Joint Select Committee on Investigations that issued subpoenas to Christie’s governor’s office, reelection campaign, and 15 Christie appointees — dropped the racketeering charge against Blagojevich after the first jury convicted the governor only on a single count of lying to the FBI. Without the RICO charge, Schar’s streamlined case in the second trial brought convictions on 17 counts of conspiracy, attempted bribery, extortion and wire fraud.

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Robert Del Tufo, the former U.S. Attorney and New Jersey Attorney-General, touched off a debate on MSNBC last month with his suggestion that the Christie team could eventually face RICO charges. But he backed off that conclusion as premature in an interview yesterday, saying he did not want to prejudge Fishman’s investigation and praising the U.S. Attorney for “going about this in a very professional way. You don’t have to stand up and crow about what you’re doing.”

In fact, reporters only learned that Fishman had recently issued a subpoena to the governor’s office because Christie disclosed it during his Monday night interview on New Jersey 101.5 FM.

Del Tufo marveled at the breadth of the allegations of corruption, conflict of interest, and coverup involving an interrelated cast of Christie appointees and allies that have emerged in the month since the January 8 bombshell disclosure of Kelly’s email telling Wildstein it was “time for some traffic problems in Fort Lee.”

“This may be much broader than we think,” Del Tufo said. He pointed to allegations that Kelly in the governor’s office directed the Port Authority’s Wildstein to close the bridge lanes, that Port Authority Chairman David Samson tried to intervene to block the public disclosure of the story behind the lane closures, and that Port Authority money went into a study that recommended a development in Hoboken that Samson’s law firm represented — and that the Christie administration allegedly pressured Zimmer to support.

The alleged threat to withhold federal Sandy aid from Hoboken if Zimmer refused is the flip side of the allegation that Christie pushed through Sandy funding for a senior citizen complex in Belleville, which had no Sandy damage, to encourage Belleville’s Democratic mayor to endorse him for reelection.

Del Tufo said he was particularly troubled by the allegations made by former Hunterdon County Prosecutor Ben Barlyn in a civil lawsuit currently working its way through state Superior Court. Barlyn charges that Christie’s former Attorney General, Paula Dow, took over his office in 2010 and improperly fired him and his assistants to squelch a corruption case against Hunterdon County Sheriff Deborah Trout, a Christie GOP ally, that four jurors testified was proper.

“Clearly, there’s something wrong here. The charges in all of these cases involve abuses of power, generally for political purposes,” Del Tufo said.

Del Tufo noted that public officials could be found guilty of violating the Hobbs Act of 1951 – which, like RICO, was originally enacted to crack down on labor racketeers — for obtaining a payment or benefit to which they were not entitled. In fact, the U.S. Supreme Court ruled that the Hobbs Act’s “under color of official right provision does not require that the public official take steps to induce the extortionate payment: It can be said that ‘the coercive element is provided by the public office itself’” — in this case, the perceived power of the governor’s office.

While the U.S. Attorney’s investigation, which would go to a grand jury before charges are made public, could build slowly for months behind closed doors, the Legislature’s Special Committee on Investigations will be bringing its witnesses in to testify publicly.

The panel, chaired by Assemblyman John Wisniewski (D-Middlesex) and Senate Majority Leader Loretta Weinberg (D-Bergen), is focusing first on Bridgegate, but its broad charter allows it to branch out to investigate any abuses of power or the coverup of those abuses, by the Christie administration, as the far-reaching subpoenas it issued in mid-January demonstrated.

The U.S. Attorney’s investigation and the Legislature’s inquiry could very well extend into 2015, based on the experience of the Watergate, Iran-Contra, and Whitewater investigations in Washington and the Blagojevich case which ran for three years from hearings and investigations to impeachment to trials. “There is nothing comparable in scope in modern New Jersey history,” said Robert F. Williams, Associate Director of Rutgers-Camden Law School’s Center for Constitutional Studies.

New Jersey’s Bridgegate saga and other alleged Christie administration scandals could play out differently than the federal cases because the New Jersey Legislature does not have the powers Congress has to grant immunity to witnesses, legal experts noted.

That is why Kelly and Stepien not only indicated they would follow Wildstein’s example in taking the Fifth Amendment when called to testify before the Wisniewski-Weinberg committee, but also cited both their Fifth Amendment right against self-incrimination and their Fourth Amendment right against unreasonable search and seizure in refusing to produce documents, emails, and other materials demanded by the committee because they could be used by the U.S. Attorney’s Office to build a case against them.

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The legislative committee, whose counsel Schar met with U.S. Attorney Fishman Saturday to discuss how the legislative inquiry could proceed without interfering with the federal investigation, is expected to challenge Kelly’s and Stepien’s right to withhold documentary evidence, even if they refuse to answer questions when called to testify.

Proving a connection in the planning and execution of Bridgegate between Stepien, who served as Christie’s political enforcer within the administration before moving over to the campaign, and his protégé Kelly, who replaced him as deputy chief of staff for legislative and intergovernmental affairs, would be the critical link in tying both the governor’s office and the campaign to the George Washington Bridge lane closures.

Christie said he removed Stepien from his consulting position with the Republican Governors Association and his planned chairmanship of the New Jersey Republican Party for the “callous indifference” he showed to the Bridgegate lane closures in after-the-fact emails to Wildstein. But Christie did not fire his press secretary, Michael Drewniak, for profanity-laced emails that were worse than Stepien’s, leading political insiders to question privately whether Christie suspected Stepien had a hand in Kelly’s Bridgegate directive — yet another reason for Christie not to question Stepien or Kelly before firing them so he would not have to know.

Establishing the motive for the secret George Washington Bridge lane closures is critical because “unlike typical corruption cases, it’s not clear with Bridgegate that there was any money passing hands,” said Aidan O’Connor, who served as an Assistant U.S. Attorney for 18 years, including the Christie years, before joining PashmanStein in Hackensack.

Turning a Profit

Most state laws covering bribery, extortion, and official misconduct are written primarily to prohibit public officials from personally profiting or helping friends or family members to profit from decisions they make in their official duties, rather than from the misuse of their governmental position to advance their political aims or those of the leaders they serve.

If the bridge lanes were closed and traffic was snarled for four days in Fort Lee as retaliation against Democratic Mayor Mark Sokolich for refusing to endorse Christie for reelection, prosecutors would have to get the jury to “buy into the idea that political advancement and maintaining political position has a real tangible value,” O’Connor said.

“Do people say this is politics as usual or does it cross the line?” he said. “You have to look at it as a prosecutor would. Is this something as a society we don’t want? The general intent of the law is to go after corrupt behavior. You have to ask whether this crosses the line from hardball politics to misuse of state power. You would have to say this is not typical hardball politics, but misusing the levels of the state to maintain power.”

Similarly, while Zimmer’s allegations that Lt. Governor Guadagno threatened to hold up Sandy aid if she did not support a politically connected high-rise are more serious, the same question is involved, said Michael J. Sullivan, a former federal public defender who is now a partner with Coughlin Duffy in Morristown.

“Clearly, conditioning the payment of federal aid that is otherwise appropriately due and owing, and conditioning it on some other action is improper and illegal,” Sullivan said. “On the other hand, there is a certain amount of horse trading allowed in politics.”

The U.S. Attorney’s Office is going to want corroborating evidence before bringing a “she said, she said” case simply pitting Zimmer’s word against Guadagno’s, the lawyers agreed.

Blurring the Lines

The problem of the blurring of the line between governmental and political activity is not unique to New Jersey. Kelly and other officials switched from their governmental email to their personal email when they were exchanging political communications, including those pertaining to Bridgegate. But Adams, the Colts Neck defense attorney, noted that “Karl Rove carried two blackberries. One was his official government one, the other was his political one,” and that was while he was on the White House payroll as President George W. Bush’s in-house political operative — a position similar to the one Stepien filled as Christie’s deputy chief of staff between the 2009 and 2013 campaigns.

However, New Jersey laws and ethics statutes clearly bar government officials from doing political business on work time — which is why Stepien left the governor’s office to work on the campaign.

O’Connor noted that the misallocation of federal money, particularly in amounts totally more than $10,000, is illegal. That is important because the Port Authority, whose allocation of funding to projects favored by the Christie administration, receives sizable amounts of federal money, and because federal Sandy aid played a central role in both the Hoboken case and the controversial construction of a senior citizen center in Belleville, which suffered little Sandy damage, as an alleged inducement to the mayor to endorse Christie for reelection.

If Sandy money was misallocated for political purposes, the check itself would constitute evidence of federal wire fraud, O’Connor said, as would any improper orders communicated by telephone. Almost half of Blagojevich’s conviction counts were for wire fraud.

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While the Bridgegate lane closures could constitute interference with interstate commerce or violations of the Civil Rights Act, Sullivan said he “would go after creating a hazardous condition. It’s no different than if you went down there and put 55-gallon drums full of rocks in the middle of the highway and people could get run off the road. That’s official wrongdoing.”

Sullivan said the slow unfolding of the Bridgegate scandal over the past four months makes it unlikely that key principals will face indictment for lying under oath to federal law enforcement officials or the FBI. “By the time law enforcement people were doing interviews, they knew what was going on so they’re not going to get caught that way,” he said.

But Adams said the subpoenaed documents could provide invaluable evidence of a coverup.

“The coverup is always easier to prove,” Adams said. “In fact, the coverup often strengthens the prosecution’s ability to prove the original crime they are covering up because a coverup is evidence of consciousness of guilt. It’s what you do after what could have been an accident. If you hide the bloody clothes or erase documents, that is evidence of guilt. If you did nothing wrong and did not believe you had committed a crime, you wouldn’t take those steps.

“But if you know an investigation is imminent or pending and you try to cover up evidence or make sure everybody gets their stories straight, that’s evidence of guilt.” The cliché is true, Adams said: “The coverup is worse than the crime.”