Kelly and Stepien also are under investigation by the FBI, their lawyers said, and turning over those records could place them at risk of incriminating themselves. They argued that the subpoena was overly broad, and required them to cull through their records and determine what might be related to the bridge closures, thus collecting evidence against themselves.
“I’m not saying thumbscrews, they’re not putting us on the rack,” said Kelly’s lawyer, Michael Critchley, holding aloft a copy of Kelly’s “traffic problems” email. “But they are in essence asking us to incriminate ourselves by asking us to turn over these kinds of documents.”
But Reid Schar, attorney for the committee that issued the subpoenas, said that under that argument, “No one’s ever going to be able to get anything.”
“This is not a fishing expedition,” he said. “There are additional emails out there. I’m not guessing, judge, because I’ve seen them.”
Superior Court Judge Mary Jacobson will review the case before issuing an opinion. She probed Schar on the legal reasoning for the subpoena but also pressed Critchley: “’Time for traffic problems in Fort Lee,’ it didn’t come out of thin air,” she said, saying it was a reasonable assumption there would be related emails before that one.
Kelly sent that now infamous email in August to David Wildstein, who worked at the Port Authority of New York and New Jersey at the time and had ordered the road closures. Wildstein’s response was a terse “Got it.”
Many of Jacobson’s questions focused on “reasonable particularity” — whether the committee’s subpoena requests were specific enough that it would not take any “mind power” on the part of Kelly and Stepien to find the records.
“You haven’t pointed me to any e-mail that shows, that contemplated other emails,” Jacobson told Schar, questioning the subpoenas’ specificity. “You’re making assumptions, it seems from the emails, that you have that there’s got to be more.”
Schar conceded that not all of the documents requested might meet that request, particularly hand-written notes, diary entries or other records.
In response, Jacobson said she was hesitant to enforce only portions of the subpoena that are specific enough. “I don’t know if judicial surgery is appropriate here,” she said. “If it’s overbroad, it’s overbroad.”
Jacobson suggested that Schar grant Kelly and Stepien immunity, which would take care of the concerns about self-incrimination. Schar said the law was unclear about whether the committee had the power, but Critchley said Schar just did not want to go that route.
“If they give us immunity, it applies to both federal and state,” he said, referring to the U.S. attorney’s investigation.
The Fifth Amendment claim by Kelly may face tougher scrutiny than Stepien’s because she was a public employee, and case law states that records required under law to be maintained by a government cannot be withheld by claiming the constitutional protection.
Critchley argued the state’s document requirements were unclear and disjointed, forcing Kelly to “guess” what her responsibilities were. But Jacobson, who often intervenes in public records disputes, said she worried that agreeing would send the wrong message to public employees.
Kelly, who worked on Christie’s election campaign and later as deputy chief of staff, was called “stupid” and a liar by Christie at his press conference. “Obviously, I disagree with that statement,” Critchley said. “I represent an innocent person.”
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