Opinion: The Real Significance of the Unindicted Co-Conspirator

Carl Golden | June 9, 2016 | Opinion
John Doe raises uncomfortable questions about why he chose not to act while legally questionable acts were being committed

Carl Golden
When the usual end-of-the-year vote is taken to designate the most significant political figure of 2016, I intend to mark my ballot for John Doe, the unindicted co-conspirator who wishes to remain both unindicted and unidentified.

Doe is among those on a list compiled by United States Attorney Paul Fishman as having had knowledge of the plot to close access lanes to the George Washington Bridge in September of 2013, but his involvement was not sufficiently egregious to warrant an indictment.

A number of media organizations filed suit to obtain the list and, at one point, actually won their case. On the day the list was scheduled for disclosure, though, John Doe popped into view and successfully appealed the order. The dispute has since made its way to the Third Circuit Court of Appeals, which heard arguments earlier this week and will issue a ruling at some unknown point in the future.

The First Amendment hangs in the balance, according to the attorney for the media organizations, while the sanctity of the discovery process in legal proceedings is at risk, according to Fishman and Doe’s lawyer.

For those who speculate for a living as well as those who indulge in the practice as a hobby-like diversion, the contest over public disclosure of the names of individuals — in government and out — who were aware of but did nothing about the lane closures has become political catnip.

While the rather arcane legal point — protected discovery documents or a matter of public record — will ultimately be resolved by the courts, Doe’s argument and, presumably, that of all who share the list with him, is the essence of simplicity: Public identification is the equivalent of a scarlet letter burned into his forehead.

While an unindicted co-conspirator is, by definition, someone not accused of criminal conduct, Doe contends the mere designation carries with it a stigma of improper behavior and provides no recourse to establish innocence. It is tantamount to a finding of guilt in a court of public opinion, rather than in a court of law.

The media groups argue that in light of two indictments — former Port Authority of New York and New Jersey Deputy Executive Director Bill Baroni and former deputy chief of staff to the governor Bridget Anne Kelly — and a guilty plea from former authority executive David Wildstein, the public has a legitimate right to know who else was involved in plotting the lane closures or engaging in a cover-up when the original justification of a traffic study collapsed.

The longer the list remains secret and the more vigorous the challenge to its release, the more intense the speculation will grow, not simply over whose names appear, but what positions they held in the Gov. Chris Christie’s office — if any — and how close a confidant they were to the governor.

Christie has maintained he knew nothing of the lane closure scheme in advance and did not engage in any effort to promote a cover story. Should the unindicted co-conspirators be identified publicly, skeptics and political opponents will immediately point out any whose close relationship with Christie suggests a sharing of information.

While Doe’s point that disclosure of his identity would inflict irreparable personal and professional damage in the eyes of a public whose suspicions about government arguably run more deeply than any time in history, there is a longer term and equally concerning element involved.

To be aware of questionable activity in high government circles and to facilitate it, fail to act to dissuade others from engaging in it, choose not to inform superiors, or aid in concocting a false narrative after the fact raises serious questions about judgment. It indicates, also, a willingness to tread close to the boundaries of propriety or to step over them.

That sort of professional baggage will lead to potential future employers looking twice before hiring. Sound judgment and instincts are qualities for which one is selected to work in a governor’s office, for instance, and a failure to exercise either is a major flaw mitigating against employment in any sensitive position in the private sector.

The entire lane closure episode — “Bridgegate,” in media shorthand — has been the subject of a “what the hell were they thinking” reaction. Who, critics asked, in his or her right mind would carry out a plot to shut down access to one of the world’s busiest bridges for four days as retaliation against a small town mayor for refusing to endorse the governor’s re-election.

Who, indeed? It is necessary to understand that a governor’s office can be an incredibly insular environment, often populated by inexperienced people who suddenly find themselves at the center of power, able to move the levers of authority and hold some sway over the actions of others.

The magic phrase, “This is the governor’s office calling,” gives anyone uttering it entrée to people and places open only to a select few. Exercising the political clout inherent in the office can become an end unto itself, using it to impose a course of action on others, even in the face of reasoned opposition.

I spent 11 years in two governor’s offices — 1982 to 1990 as press secretary to Gov. Thomas H. Kean and 1994 through 1997 as communications director for Gov. Christie Whitman — and either witnessed or participated in an almost daily struggle to ensure that everyone in the office stayed well-grounded and understood the responsibilities with which they’d been entrusted.

The temptation to exert influence or to lash out against critics who were unfair or ill-informed was great and nearly irresistible. The greater good, though, lay in resisting it.

It is altogether possible the unindicted co-conspirators in the Bridgegate scandal suffered a lapse in judgment or that their outlook was clouded by their relatively lofty position — a belief that, “We can do whatever we want and justify whatever we do.”

They will most certainly be damaged and their reputations besmirched by public disclosure of the role they may have played in Bridgegate. There is a price to pay and public sympathy will be hard to come by.

One thing is assured, however. John Doe, if eventually identified, will be the most significant political figure of 2016. If, however, he remains under a judicially imposed cloak of secrecy, he’ll be New Jersey’s answer to Deep Throat.

Carl Golden served as press secretary for Republican Gov. Thomas Kean for eight years and as communications director for Republican Gov. Christie Whitman for three years. He is currently a senior contributing analyst with the William J. Hughes Center for Public Policy at Stockton University.