Can Panel Compel Kelly, Stepien to Release Bridgegate Emails?

Mark J. Magyar | March 12, 2014 | Politics
Judge with extensive background in OPRA cases signals that legislative committee has stronger case in demanding emails from Kelly than from Stepien

Bridget Kelly, former deputy chief of staff for Gov. Chris Christie.
The future of the Legislature’s Bridgegate investigation is in the hands of a Superior Court judge who will decide whether Bridget Kelly and Bill Stepien, the deputy chief of staff and campaign operative who are the only two staffers Gov. Chris Christie has fired, must turn over emails and other communications related to the infamous George Washington Bridge lane closures.

Assemblyman John Wisniewski (D-Middlesex) and Senate Majority Leader Loretta Weinberg (D-Bergen), the cochairs of the Joint Select Committee on Investigations, had reason to be pleased that the ruling will be issued by Mercer County Superior Court Assignment Judge Mary Jacobson, who frequently rules on state government open public records cases.

In a case that pits Kelly’s and Stepien’s Fifth Amendment right against the legislative committee’s right to subpoena documents as part of a duly constituted investigation, Jacobson zeroed in on the fact that public employees like Kelly know they have an obligation to preserve and produce public records, including private emails, related to public business.

She also signaled that she was inclined to agree with the legislative committee’s contention that it had sufficient reason to believe that Kelly, more so than Stepien, possessed additional emails concerning the Bridgegate lane closures.
“’Time for some traffic problems in Fort Lee’ didn’t come out of thin air,” Jacobson said, quoting the August 13 email from Kelly to David Wildstein, Christie’s top political operative at the Port Authority, that linked the scandal directly to the governor’s office and resulted in Kelly being fired. “There is reasonable suspicion there were emails prior to that.”

A Question of Contempt

Jacobson’s ruling on the legislative committee’s request to hold Kelly and Stepien in contempt and compel them to turn over all relevant emails, text messages, phone records, and other communications is critical to the investigation by the Wisniewski-Weinberg panel.

The committee already has “many” more emails to and from Kelly and Stepien pertaining to Bridgegate. They have been submitted over the past month by some of the 20 state government, Port Authority, and campaign officials whose communications were subpoenaed by the panel, Weinberg and Wisniewski said, confirming special counsel Reid Schar’s disclosure during the three-hour court hearing.

Getting Kelly’s and Stepien’s private communications is critical to uncovering the genesis of the Bridgegate lane closures because the most important emails are not likely to be obtained through the subpoena the committee issued to the governor’s office and other high-ranking officials, Schar said.

“There seems to have been a concerted effort every time an e-mail of substance came in to take that e-mail, forward it to a personal email account so it was no longer going to be maintained on the servers of the governor and then e-mail back and forth,” Schar said, referring to the apparent tendency of Kelly, Wildstein and others to try to hide their communications on Bridgegate.

Obtaining these confidential communications is critical for the committee because Michael Critchley and Kevin Marino, the attorneys representing Kelly and Stepien, made it clear yesterday not only that their clients are affirming their innocence, but also that they would invoke their Fifth Amendment right against self-incrimination – as Wildstein did in January – if called to testify publicly.

Like Wildstein lawyer Alan Zegas, both Critchley and Marino suggested yesterday that the best way for the committee to get the documents it wanted was to grant their clients immunity against prosecution – a step that the legislative committee is reluctant to take.

In fact, Critchley suggested that Schar had already reached a private agreement with U.S. Attorney Paul Fishman on how their two investigations would proceed that might affect any immunity considerations.

An Ongoing Probe

It is the ongoing probe by the U.S. Attorney’s Office — which has sought unsuccessfully to interview Kelly and Stepien, as well as their relatives and friends – that Critchley and Marino said clearly established that their clients had a reasonable expectation that they are targets of a criminal investigation. It is for that reason that they should assert their rights against self-incrimination.

Critchley, in particular, asserted that the production of the “time for some traffic problems in Fort Lee” email, for example, would “authenticate” the email that Wildstein provided to the committee in response to a December subpoena, and suggested that he would challenge the email’s authenticity if the case ever went to court.

He also implied that Kelly had a right to destroy private emails — an assertion that raised questions among reporters about whether she still had the emails to produce and prompted Jacobson to demand incredulously if Critchley was indeed claiming that “there is discretion to destroy documents and not to testify on public issues.”

Jacobson made it clear in her questioning of Schar, Marino and Critchley that she felt the legislative committee was on firmer footing demanding the release of emails and text messages from Kelly than from Stepien.

First, Kelly was serving as Christie’s deputy chief of staff and therefore was a state employee both before, during, and after the September 9-13 George Washington Bridge lane closures. That makes her subject to the requirement that public employees provide access to both public and private communications pertaining to public matters. Stepien was working for Christie’s reelection as his campaign manager when he was sending and receiving emails pertaining to Bridgegate, so he was not subject to the same requirement.

Second, Marino seemed to make headway with Jacobson with his argument that the five Stepien emails cited by the committee did not establish as a “foregone conclusion” that other Stepien emails pertaining to Bridgegate existed. As Jacobson told Critchley, “in terms of Ms. Kelly, many more emails were cited. In terms of ‘foregone conclusion’ of further emails,” she said, “it may be a different analysis (for Kelly) than there was with Mr. Stepien.”

Close to Tears

Kelly, who appeared in court yesterday, bit her lip and looked worried and near to tears as Critchley defended her innocence at a press conference held outside the Mercer County Criminal Courthouse following the hearing.

“She is a 42-year-old single mom with four children, trying to make do through a difficult time,” Critchley said. “She is unemployed and looking for work.”
Critchley, who answered all questions directed to the silent Kelly, chided the press corps for rushing to judgment about Kelly’s guilt based on the “time for some traffic problems in Fort Lee” email provided by Wildstein to the legislative committee, an email whose authenticity he challenged yesterday.

“She is not someone running away and living the life of a hermit,” Critchley said, explaining that Kelly decided to attend the hearing because “her life has been affected dramatically and the court was going to discuss an issue of significance that affected her life, and she wanted to be here to show it was important.”

Marino said Stepien decided not to attend the hearing, noting that he was not required to appear for yesterday’s legal arguments. He said Stepien is “an innocent man who has been ensnared by ambiguous circumstances.” Evidently, he was referring to Stepien’s inclusion on email chains from Wildstein, Kelly, and former Port Authority Deputy Executive Director Bill Baroni pertaining to Bridgegate. “Mr.Stepien has had his life upended.”


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.

Politics and Partisanship

“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.