Pssssssst! Bridget Kelly invokes Fifth Amendment, declines to produce subpoened documents

[malaise]

Updated: Monday February 3, 2014, 7:31 PM
Bridget Anne Kelly, who sent the now infamous email, "Time for some traffic problems in Fort Lee," has invoked her Fifth Amendment rights and told the NJ Legislative Select Committee that she will not produce information demanded in the committee ...
- See more at: http://www.northjersey.com/breakingnews/#sthash.Tr1UFeDd.dpuf

[spanone]

1. if these are state computers, does she have the choice of not turning them over?

is she doing state business on her personal computer?

the plot thickens....

[Gothmog]

2. It is not clear that the 5th Amendment applies to the production of documents

Here is a good thread where some DU lawyers discussed the law on this topic http://www.democraticunderground.com/10024427107

I think that the Act of Production and the concept of testimony by production do not apply in this case and the Bridget Kelly is going to lose this claim.

[yellowcanine]

16. Pretty sure it doesn't apply to official documents from work. Might apply to a personal diary.

Even that could be a close call if it were basically a work appointment book with daily notes.

[WinkyDink]

3. Bridget is in deep doo-doo. Defiance of a subpoena is not part of the 5th Amendment.

[malaise]

4. She will learn n/t

[ProSense]

5. That makes

"Bridget Kelly invokes Fifth Amendment"

...three.

Second Christie Pal (Bill Stepien) Invokes Fifth Amendment Rights
http://www.democraticunderground.com/10024422170

[freshwest]

15. Christie will be fifth to take the fifth! Wait for it! n/t

[lindysalsagal]

6. Hard to believe Chrispy didn't know, when all of his underlings are pleading 5th.

I'm sure he's happy they're not releasing documents, but eventually, someone will cough up the papers and he'll be gone.

If they all knew, he knew, and he's responsible. Period.

[2naSalit]

7. and she will be found in contempt

as with the other two cohorts in this issue. The only thing she can make that claim in is in court and these subpoenas are not from a court they are from a commission, different animal altogether. She will have to comply and I don't see why the computers haven't been seized, but that might be what happens now that she refuses. If not by the commission then by the federal attorney and grand jury with help from the FBI.

The feds just come and take the stuff they want in a case... probably going to happen this week. In a case like this, you can't just say "no" and not expect to be "raided" and this would now likely include her home. Way to go there, Bridget.

ETA:

[Gothmog]

11. She is relying on "act of production" and "testimony by production" concepts

There are some very very limited exceptions where the 5th amendment can apply to documents but I do not think that these concepts apply in this case. There will be a show cause hearing at some point and the parties will litigate this issue.

[2naSalit]

13. I can go with that. nt

[Cha]

8. What's so scary that you're

hidin', "Time for Some Traffic Problems", BAK?

[RainDog]

9. k&r n/t

[Laxman]

10. I Think They Are Stalling...

for time to allow the U.S. Attorney's Office to catch up with the legislative committee. What happens at the committee is of no consequence to Ms. Kelly while what happens with the U.S. Attorney means everything. I also wouldn't be surprised if Mr. Critchley and Mr. Zegas weren't hatching something to keep both of their clients out of jeopardy. After all, that is their job, not entertaining us. (As much as I wish it were the latter! )

[calimary]

18. Or so they have time to shred all the documents?

Wondering what's kept them all from wanting to "clean house" a little, in anticipation of having to cough stuff up later? I'm no legal expert here. But seems to me there's been plenty of time to shred papers and destroy anything that might be compromising since this started blowing up late last year - up til subpoenas were issued just a few weeks ago.

Anybody here have expertise on this?

[DirkGently]

23. Yeah. They're giving the legislative committee the finger. Won't

work with the U.S. Attorney's office. They're likely all hoping to hold onto whatever cards they have for when the Feds come knocking. They certainly won't try to withhold docs from the real cops on a made-up interpretation of the 5th Amendment.

I really hope Bridget Kelly sings like a canary. That e-mail of hers was pretty nasty, but Christie implying she was the mastermind behind all of this is disgusting.

I don't know what Christie's (remaining) people are promising or threatening behind the scenes, but at this point I would think her counsel is telling her to offer up the boss on a platter. He's certainly made it clear he's willing to toss her and everyone else aside to preserve himself.

[moondust]

14. Silence is golden.

[Dread Pirate Roberts]

17. Can we get someone on DU to do a photoshop request?

It seems that this story is tailor made for an Allstate Mayhem Commercial. "I'm a traffic cone....."

[HappyMe]

19. Isn't that contempt of court

and you get hauled off to the slammer.

[davidn3600]

20. Only if you are given immunity

5th amendment is clear that a person cannot be forced to testify against themselves. However, if the witness is given immunity, and then continues to refuse, then that can be considered obstruction of justice.

[HappyMe]

21. Okay, thanks.

[gerogie2]

22. If it is a document it is NOT protected by Fifth Amendment or Privacy

She has the right to remain silent. However, any documents no matter their source are subject to any subpoena by a governing body or court. The subpoena for documents has been challenged numerous times even trying the privacy right and it has not been allowed by the courts, State or Federal.

[Gothmog]

24. Kelly's lawyer is relying on the Act of Production concept

Generally the act of production and the concept of testimony by production only applies when (i) when the existence of the document in questions is unknown and (ii) the act of producing the document is in effect testimony as to the accuracy, authenticity and authorship of the document. If the existence of the document in question is a foregone conclusion, then the act of production privilege does not exist. Here is a good explanation of this concept http://www.lrrlaw.com/files/Uploads/Documents/Gilson_ActofProduction_CrimLitNL.pdf

I have read the lawyer from Kelly's lawyer. This letter relies on the Hubble case where Webster Hubble produced 13,000+ pages of documents that the government could not describe adequately to subpoena such documents that were produced pursuant to a grant of immunity. The SCOTUS held that the government did not prove that it was not a forgone conclusion that these document existed. http://sol.lp.findlaw.com/1999/hubbell.html

Here, by way of the contrast, "the Government has not shown that it had any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents ultimately produced by the respondent." Thus, "[w]hatever the scope of this ‘foregone conclusion’ rationale, the facts of this case plainly fall outside of it."

In short, Hubbell’s act of producing the subpoenaed documents pursuant to an immunity order and of answering the standard custodial questions as to whether he had produced all of the requested documents, fell squarely within the ambit of Kastigar. Accordingly, the Government would have to meet the stringent Kastigar test in order to proceed to trial. This the Government was, by its own admission, unable to do.

I think that the existence of e-mails from a private account used by Kelly are foregone conclusions and that the act of production doctrine does not apply. I really doubt that the act of production doctrine will protect these documents in that the government knows that Kelly had sent e-mails on this topic and there are other e-mails that are in existence.

The next step will be to litigate the extent of this privilege and I doubt that Kelly will win this issue but she may buy some time to negotiate a plea deal with US Attorney