On Monday, former Christie deputy chief of staff Bridget Kelly became the third New Jersey public official to invoke the Fifth Amendment in refusing to provide evidence about Bridgegate. Their doing so tells us a lot. (More)
What New Jersey Officials Pleading the Fifth Tells Us
Last August, Kelly sent the “Time for some traffic problems in Fort Lee” email approving the plan to close several entry lanes to the George Washington Bridge. The legislative committee had subpoenaed Kelly’s telephone and email records and any other documents she may have that relate to the scandal. But on Monday her attorney, Michael Critchley, said Kelly would not comply with the subpoena:
“Here, the information demanded from Ms. Kelly by the committee … directly overlaps with a parallel federal grand jury investigation being conducted by the United States Attorney’s Office for the District of New Jersey,” Critchley wrote in the letter.
“As such … Ms. Kelly asserts her rights under the Fifth Amendment of the United States Constitution and New Jersey law and will not produce the information demanded by the Committee.”
Kelly became the third New Jersey official to invoke the Fifth Amendment over Bridgegate. Former Port Authority and Christie appointee David Wildstein did so in a legislative hearing on January 8, the day the damning emails surfaced, and on January 31st former Christie campaign manager Jeff Sepien pleaded the Fifth Amendment “and New Jersey’s common law privilege against self-incrimination” in refusing to comply with the legislative subpoena.
“It doesn’t tell me anything”
During an “Ask the Governor” radio appearance Monday night, Gov. Christie said his office had received and would comply with a subpoena from federal prosecutors. He was also asked about the news that Kelly had invoked the Fifth Amendment and would not comply with the legislative subpoena:
“It doesn’t tell me anything,” Christie said of Kelly, adding, “I hope they would share information with us but I also understand people have rights.”
As evidence of an individual’s guilt or innocence, Gov. Christie is correct. Claiming the Fifth Amendment privilege is not an admission of guilt, and expressly pleading the Fifth may not be presented or inferred as evidence of guilt at trial. In contrast, mere silence – without expressly invoking the Fifth Amendment privilege – can be offered as evidence of guilt.
Indeed the constitutional protection against being compelled to testify against would have no legal effect if prosecutors could tell jurors “Then she pleaded the Fifth Amendment … and we all know what that means.” Such a comment would be grounds for a mistrial.
“It’s not clear at this point that there is criminal liability”
But Gov. Christie is a former federal prosecutor, and he knows or should know that “It doesn’t tell me anything” isn’t really true. When the damning emails surfaced in January, Wall Street Journal Law Blog writer Jacob Gershman was among many who wondered if Bridgegate included any crime:
It’s still unclear which federal law might have been broken in this scenario. The federal honest services fraud statute – recently narrowed by a U.S. Supreme Court ruling – requires evidence of bribes or kickbacks, which don’t appear to be at issue here. Obstruction-of-justice inquiries, however, can often spring from political scandals and cover-ups.
State law could prove more useful for prosecutors. In New Jersey, a public servant may be convicted of “official misconduct” for a breach of a prescribed duty related to the office with the intention of “injuring or depriving” another person of a benefit. The crime of official misconduct is a second-degree offense that can carry a prison sentence of five to 10 years.
The Washington Post’s Aaron Blake quoted his interview with Fordham University law professor Jim Cohen:
There’s no doubt that the actions, whether Christie is responsible or not, violated a host of federal and state regulations. It’s not clear at this point that there is criminal liability, but there certainly may be civil liability, such as for business losses caused by the traffic jam.
But invoking the Fifth Amendment privilege against self-incrimination tells us that Wildstein, Sepien, and Kelly – or their attorneys – disagree.
“The nature of the protection goes to the questions asked”
The Fifth Amendment Self-Incrimination Clause reads:
No person … shall be compelled in any criminal case to be a witness against himself[.]
In McCarthy v. Arndstein, the U.S. Supreme Court extended that protection to civil proceedings “wherever the answer might tend to subject to criminal responsibility him who gives it.”
The Fifth Amendment privilege can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. The protection extends equally to civil proceedings because the nature of the protection goes to the questions asked, not the proceeding itself.
In short, the Fifth Amendment Self-Incrimination Clause only applies if a question relates to criminal activity. If a neighbor slips on your snow-covered sidewalk and sues you for damages, you must comply with a subpoena and answer questions at a deposition and at trial … unless a question relates to a crime.
So it’s not quite true that “It tells me nothing” when Wildstein, Sepien, and Kelly invoke the Fifth Amendment. It tells us they or their lawyers believe that Bridgegate involved criminal activity. Their lawyers may merely be urging excessive caution, regardless of whether a federal or state criminal statute seems directly on-point. Or they and their lawyers may know about activity that hasn’t yet been made public … and that clearly would be a crime.
Regardless, they’re not invoking the Fifth Amendment because they’re worried about an ethics violation lawsuit. They’re invoking the Fifth Amendment because they’re worried about jail. Their doing so doesn’t prove any of them is guilty of a crime … but it does prove that each thinks someone may be guilty of a crime.
And that tells us a lot more than Gov. Christie’s “It tells me nothing.”