Each of the 75 interview memos opens with the explanation that “This memorandum does not contain a verbatim transcript of what was said at the meeting; rather, it is a summary of the discussion that reflects counsel’s mental thoughts and impressions and is therefore covered by the attorney work product doctrine.”
The attorney work product doctrine is used by lawyers to protect written or oral memos or materials from being subject to normal rules of discovery or compelled disclosure in litigation, but it is unclear whether Christie and Mastro assumed that the interview memos would be protected by this privilege and not subject to subpoena by the legislative committee or the federal grand jury that U.S. Attorney Paul Fishman has convened.
Maria Comella, Kevin Roberts and Michael Drewniak in the governor’s press office did not respond to emailed requests for comment from Mastro or the governor’s office on the issue of whether the attorney work product doctrine could have been used to protect the memos from public disclosure.
However, Del Tufo, the former U.S. Attorney and state attorney general, said he believed the interview memos “implicitly would be public information paid for with public funds, and I think investigators could get the memos with a subpoena.”
Assemblyman John Wisniewski (D-Middlesex) and Senate Majority Leader Loretta Weinberg (D-Bergen), the cochairs of the Select Committee on Investigation, were prepared to issue a subpoena for the interview memos if Mastro and the governor’s office did not hand them over to the committee by the Monday noon deadline they had set.
The decision by Christie and Mastro to turn over the interview memos, like their earlier decision to comply with the legislative committee’s subpoena, once again averted a, but politically Christie had little choice. It would be difficult for Christie to invoke executive privilege to refuse to comply with a legislative investigative and remain chairman of the Republican Governors Association and a second-tier contender in the GOP presidential sweepstakes he led before Bridgegate.
Christie and Mastro could have had an ulterior reason for wanting to make the interview memos public, which they did by posting them on the Gibson, Dunn & Crutcher website.
“Summarizing the alleged statements of others might have a chilling effect on people when they want to testify,” Del Tufo pointed out. “Perhaps what they (the Mastro team) have in the back of their minds is to put one of their lawyers on the stand as a witness to say, ‘That’s not what this person said when I interviewed him,’ if the testimony diverges from what’s in the interview memo.”
Del Tufo noted that Mastro and his lawyers met with key witnesses in the Zimmer case several times, apparently pushed them hard, and “may have weakened the testimony of some of these witnesses.”
He specifically cited the case of Luciana DiMaggio, Guadagno’s young aide who accompanied her to the May 13 opening of a Hoboken Shop-Rite where Zimmer alleged that the lieutenant governor threatened to withhold Sandy aid if she did not push through the Rockefeller Group high-rise project.
DiMaggio, who is just two years out of college, was interviewed three times by Mastro and two other lawyers. The first two interviews on January 23 and 27, she was alone, and at her final interview on March 10 she was represented by a lawyer.
“If you heard about this witness DiMaggio, she seems to have backtracked a little by saying she’s not sure,” Del Tufo said. “But it was pretty damning what she said the first time.”
On Saturday, January 18, after Zimmer appeared on MSNBC’s “Up With Steve Kornacki” and charged that Guadagno had transmitted a threat from Christie to withhold Sandy aid if she did not push through the Rockefeller Group project, Melissa Orsen, Guadagno’s chief of staff, called DiMaggio to ask her what she remembered about the confrontation in the parking lot that followed the Hoboken Shop-Rite tour.
DiMaggio said she was standing 15 to 20 feet away from Guadagno and Zimmer, and that the two had a “tense conversation” for about five minutes, that “they were discussing something intently,” that “they were not laughing and their faces seemed serious.” She told Mastro’s lawyers that Guadagno then got in the Suburban with her and an unnamed trooper, and “the lieutenant governor said in the car after the Shop-Rite tour something like if Mayor Zimmer didn’t play ball then there’s not much we can do.”
Orsen, who was interviewed four times, told the lawyers that DiMaggio said “the lieutenant governor got back in the suburban and said that she had to be firm and tell Mayor Zimmer to ‘play ball.’” When Orsen asked DiMaggio if she were sure, “DiMaggio said she could not be 100 percent certain that that was what the lieutenant governor said, but that the phrase stuck in her head.”
Orsen provided Mastro’s lawyers with notes she took during her call that said DiMaggio was not “100 percent sure.”
Even at her third interview with her lawyer present, DiMaggio “remembered that the lieutenant governor communicated that she was frustrated with Mayor Zimmer. With her counsel present, DiMaggio said her memory is not 100 percent accurate, but she remembered that the lieutenantgovernor communicated to her that Mayor Zimmer was not cooperating, stating in words or in substance something like the mayor was not playing ball or the mayor was not playing well with others.”