A judge appointed by a Republican says emails of public officials must be kept out of investigation.
Christie Aides Don’t Have to Turn Over Bridge Scandal Documents, Judge Rules
By KATE ZERNIKE
APRIL 9, 2014
In a major setback to the legislative investigation into the George Washington Bridge lane closings scandal, a New Jersey judge ruled on Wednesday that two of Gov. Chris Christie’s former aides do not have to comply with subpoenas seeking emails and other communications about the closings and attempts to cover them up.
In the ruling, Judge Mary C. Jacobson of State Superior Court in Mercer County criticized the subpoenas as “a fishing expedition” by the State Legislature, controlled by Democrats, which is investigating why Mr. Christie’s allies closed two access lanes at the bridge in September — and what the governor, a Republican, knew.
Judge Jacobson agreed with lawyers for the two aides, Bridget Anne Kelly and Bill Stepien, saying the subpoenas “clearly violate” federal and state protections against self-incrimination and unlawful search and seizure. She disagreed with lawyers for the legislative panel who had argued that Ms. Kelly and Mr. Stepien were required, as public employees, to turn over their records.
“The fundamental problem with the subpoenas is that they are overbroad,” she wrote.
Judge Jacobson left open the possibility that the Legislature could compel the aides to testify by offering them immunity from prosecution. But that could significantly tie the hands of the United States attorney who is conducting a separate inquiry into the closings and allegations that emerged in the wake of the scandal — about misuse of Hurricane Sandy funds and the politicization of the Port Authority of New York and New Jersey, which runs the bridge.
The court’s decision is likely to renew calls, among even Democrats in the Legislature, to shut down the investigation and defer to the United States attorney, Paul J. Fishman.
Judge Jacobson, who was appointed by a Republican governor, Christie Whitman, is widely praised for her evenhandedness, and ruled against Mr. Christie last summer in a case that established a right to same-sex marriage in New Jersey. But in this case, she was harsh on the investigators in the Legislature, repeatedly emphasizing that the subpoenas had overreached.
“A blanket subpoena calling for a fishing expedition without the promise of immunity calls for a blanket response,” she wrote.
Ms. Kelly, a former deputy chief of staff to Mr. Christie, sent an email calling for “some traffic problems in Fort Lee,” the town at the end of the bridge that was gridlocked for four days as a result of the closed lanes. Mr. Stepien held the job before her, and managed Mr. Christie’s campaigns for governor.
The bipartisan investigative committee was formed in January after legislators learned that Ms. Kelly and the governor’s allies at the Port Authority had worked to shut down the lanes soon after the mayor of Fort Lee declined to endorse Mr. Christie for re-election.
Republicans have criticized the investigation as a partisan witch hunt against the governor, whose overwhelming re-election victory last year had put him among the expected leading candidates for the Republican presidential nomination in 2016.
In recent weeks, Democrats have begun to worry they are overplaying their hand against a weakened governor — and trying the patience of taxpayers, who are paying Mr. Christie’s lawyers ($650 an hour) as well as the special legislative counsel ($350 an hour).
Mr. Christie’s popularity has dropped significantly since the scandal. He has told allies that he can rebuild his national prospects by isolating the bridge scandal as the work of rogue aides.
State Assemblyman John Wisniewski, a Democrat who is co-chairman of the legislative committee, said on Wednesday that he was confident the committee could continue its work despite the judge’s ruling.
“There is more than one method for the committee to pursue the information that it seeks,” he said. “We’re going to continue to explore all those resources to get to the fundamental question of why Bridget Kelly sent the email she did and who authorized her and how this abuse of power could have happened in the first place.”
Kevin Marino, a lawyer for Mr. Stepien, said the judge’s ruling was “a complete vindication of Bill Stepien” and called into question Mr. Christie’s decision to sever ties with him.
Ms. Kelly’s lawyer, Michael Critchley, said, “To all those naysayers who doubted our position and our desire to protect our client’s constitutional rights, I suggest Judge Jacobson’s opinion as a free tutorial on what the Fifth Amendment means.”