Like Critchley, Marino asserted that the fundamental Fifth Amendment right against self-incrimination -- which is just as important to the innocent as it is to the guilty -- outweighs the interests of any legislative committee investigating a scandal.
“When all of the politics and all of the partisanship gets stripped away,” Marino said, this case is about the fundamental right to resist “the ability of government to compel someone to bear witness against himself.”
Schar suggested in court that if Jacobson did not require Kelly and Stepien to provide the documents required, it would severely undermine the ability of legislative investigatory committees throughout the country to probe public corruption and malfeasance.
But Schar also seemed to recognize that the committee’s subpoenas could be considered overly broad -- what Marino dismissed as a “fishing expedition.” He acknowledged that the panel was able to meet the “reasonable specificity” standard required for subpoenas more easily in its demand for emails and text messages from Kelly and Stepien because it already had many in its possession. But he admitted that this was not the case in the committee's quest for cellphone records, calendars and especially diaries or other written communications of which it had no direct knowledge.
Jacobson questioned Schar’s suggestion that she determine which parts of the subpoena should be enforced – a position that might ultimately require Schar and the committee to redraft their subpoenas if Jacobson declines to do so.
She also questioned whether she had jurisdiction to hold Kelly and Stepien in contempt to enforce the subpoenas, and whether that was within the power of the legislative committee. Schar said the committee lacked the power to hold Kelly and Stepien in contempt because of the way the panel was constituted by separate Senate and Assembly resolutions.
Based on Jacobson’s comments at the conclusion of the hearing, Wisniewski said he expected her to issue her decision at the end of March or early in April.
"We will continue to move forward with the work of the committee in receiving documents under a number of other subpoenas and continuing to analyze the material to decide how the committee will move forward," Wisniewski said.
He added that the committee would release additional documents as witnesses are called to testify before the panel, but said he did not expect to convene any committee meetings to hear testimony until after Jacobson issues her ruling.