Christie Aides Succeed In Supressing Bridgegate Legislative Subpoena
By: Kevin E. Raphael
The U.S. Supreme Court held last year that a person must speak up in order to assert his/her right to remain silent. [link to case]. Governor Christie’s former aides, William Stepien and Bridget Ann Kelly, did that recently when they asserted the Fifth Amendment in response to subpoenas served by the Legislative Committee for their emails and text messages. The Superior Court determined that Mr. Stepien and Ms. Kelly do not have to respond to the New Jersey legislative subpoenas, because to force production in response to a broadly drafted subpoena, rather than specific documents that the committee is aware exists, would be a violation of their Fifth Amendment right against self-incrimination. The Court interpreted the Fifth Amendment right broadly here, because otherwise Ms. Kelly and Mr. Stepien would be forced to make testimonial acts of production in order to determine whether they have the right under the Fifth Amendment to avoid making such testimonial acts of productions. This “Catch 22” situation was viewed by the Court to be unworkable and a significant potential threat to the aides’ constitutional rights – particularly in light of the ongoing criminal investigation.
What does this mean for the ongoing federal criminal probe? It would appear, absent grants of immunity issued to Mr. Stepien and Ms. Kelly by the federal authorities conducting the investigation, that the criminal investigators would be required to seize such documents by search warrant (assuming, of course, that a federal court would define the “Act of Production” doctrine in a similar fashion to the state court). The available emails from the aides’ former work email accounts may be enough to support an application for such a warrant, at least as to Ms. Kelly.