Jersey … Again!

April 10, 2014

I wrote Jersey and the Fifth Amendment on March 13, four weeks ago. No answers yet, although the news was chock-a-block full of New Jersey Superior Court Judge Mary Jacobson’s ruling on motions for protective orders filed by Bridget “time for some traffic problems in Fort Lee” Kelly (Governor Chris Christie’s former Deputy Chief of Staff) and Bill Stepien, the governor’s campaign manager. Here’s’s NJ Judge Rules against Bridge Scandal Panel in Subpoena Fight overview of the court ruling. The story offers the level of information and detail found in most of the stories. Lots of quotes from the ruling, and statements from counsel, and not much analysis.

(The ruling is reportedly 98 pages long. For you, my wonderful readers, I would have gladly read it:  alas, I can find it nowhere! In this Internet age, I’m feeling like my searches must have been poorly designed, but I can’t find it. I also can’t find any analysis from competent, independent observers.)

The reports highlight a few issues. First, the judge said the subpoena was overbroad, and that the request for information and documents constituted a fishing expedition. That’s “legal-speak” for “we’ll through something out there and see what comes up.” Second, the judge seems troubled by the notion that producing documents may implicate Fifth Amendment protections against self incrimination. Finally, the reports claim the ruling allows the state legislature’s investigative committee the right to grant immunity to Ms. Kelly and Mr. Stepien, so long as immunity protects them fully against any state or federal charges.

A few quick thoughts:

When a judge tells me I’ve “gone fishing”—it happens almost never—I rewrite my subpoena, narrowing my request. Not sure why that hasn’t happened here, but political cases don’t always follow trails followed by attorneys in regular cases.

The Fifth Amendment issues are discussed in the March 13 piece. Noteworthy to me, however, is the lack of clarity about the ownership of the documents. I assume—maybe incorrectly—that some of the documents—especially those sought from Ms. Kelly, a state employee at all relevant times—may be located on a government-issued computer or smart phone, or in a gray, metal filing cabinet. I wonder why a government employee has any right to keep private anything located on a device or in a file belonging to the government.

Can the state of New Jersey grant immunity and affect any federal prosecution? (The New Jersey U.S. Attorney has a pending investigation.) Can a state court judge tell the feds anything? That immunity can be granted by a state prosecutor and affect the federal government, or that a state court judge can force a U.S. Attorney to participate in an immunization process, runs counter to the supremacy clause in the Constitution.

I don’t have answers, partly because I haven’t read the opinion. I wish, though, that journalists sought out and relied more heavily on attorneys when a story involves legal issues. This case presents some very interesting constitutional issues, yet there’s very little available information to enlighten us about them.

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