Bridget Kelly invokes Fifth Amendment, declines to produce subpoened document

[cal04]

Source: The Record

Governor Christie's former deputy chief of staff, Bridget Kelly, will not turn over documents in response to a legislative subpoena, her lawyer said Monday, making her the second person to invoke constitutional protections against self-incrimination.

The information demanded by a legislative committee about the George Washington Bridge lane closures "directly overlaps with a parallel federal grand jury investigation," a letter from attorney Michael Critchley, Sr. to the committee's special counsel states. The letter, obtained by The Record, also cites her right to privacy.

"Moreover, providing the Committee with unfettered access to, among other things, Ms. Kelly's personal diaries, calendars and all of her electronic devices amounts to an inappropriate and unlimited invasion of Ms. Kelly's personal privacy and would also potentially reveal highly personal confidential communications completely unrelated to the reassignment of access lanes to the George Washignton Bridge," Critchley wrote.

Already released records show that Kelly sent an e-mail to a Port Authority executive weeks before the lane closures: "Time for some traffic problems in Fort Lee," it said. Christie fired Kelly last month after the e-mail surfaced. He also cut ties with his former campaign manager, Bill Stepien, whose attorney last week also declined to produce the documents requested by a subpoena.


Read more: http://www.northjersey.com/news/Bridget_Kelly_invokes_Fifth_Amendment_declines_to_produce_subpoened_documents.html

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Bridge scandal: Bridget Kelly refuses to turn over documents subpoenaed by legislative committee

(snip)
In a letter issued today by the lawyer for Kelly, who last month was fired as Gov. Chris Christie’s deputy chief of staff after emails emerged showing she had apparently orchestrated lane closures at the bridge, Kelly cited both her Fifth Amendment constitutional right against self-incrimination and Fourth Amendment right against wrongful search and seizure as she denied the requests.

Michael Critchley, Kelly’s lawyer — widely known as an aggressive and highly skilled, tactical trial lawyer – wrote that, “Here, the information demanded from Ms. Kelly … directly overlaps with a parallel federal grand jury investigation being conducted by the United States Attorney’s Office for the District of New Jersey. As such … 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.”

Critchley sent his letter late today to Reid Schar, special counsel to the joint Senate and Assembly committee leading an investigation into the September lane closures.

http://www.nj.com/news/index.ssf/2014/02/bridge_scandal_bridget_kelly_objects_to_legislative_subpeona_refuses_to_turn_over_documents.html

[Warpy]

1. He is not going to be able to rebuild an organization by 2016

Every single person he blames for this is being thrown under the bus. He'll be left in office without loyalists surrounding him and without loyalists to help run a campaign.

He's toast for 2016. He might be back in 2020.

[George II]

11. The way this is going, he's not going to need an organization, and he can forget 2020 too.

[another_liberal]

12. Christie is going to prison. Misuse of Sandy funds will stick even if nothing else does.

In my opinion, Kelly is just delaying in hopes of turning State's Witness with immunity.

[Walk away]

35. I think you are right about this. The republicans in Congress..

will want his head over Sandy funds after he actually bullied them in public over it. He has no friends in government. Both sides hate him and nobody fears him anymore. The Feds will be turning him out for years.

[cstanleytech]

40. I wouldnt count on the misuse of funds nailing him as like cockroaches

politicians like him are very difficult to get rid of.

[another_liberal]

43. He has powerful friends . . .

That much is true. Some of his enemies, though, are also powerful, and there are many more of them.

[Whisp]

52. I hope it's prison for him.

For him to get away with this would be the nail in some last coffin somewhere.

I didn't follow the Blogovitch story that closely but compared to Christie, that guy was an innocent lamb in what he did.

Prison for Christie! Lots of it!

[roguevalley]

23. lawyers, how the heck can she say frag off? How can she refuse to produce stuff

that was if for no other reason was made when she was working for the state. she can't refuse what doesn't in the main belong to her, right?

[cstanleytech]

41. Shes hoping to buy time to work out a plea deal most likely and if the prosecutor is stupid

enough he or she will grant it without thinking about it first.

[NancyDL]

48. This is a good thing...

Christie is the only half way reasonable candidate the Republicans have, and so those in the Tea Party Wing hate him. Even tarnished, it's possible he could have pulled enough independents to make a good run of it. Are there any non-bozos in the running on the right? I can't think of even one.

[rug]

2. The Fifth Amendment only covers testimony.

Her records are toast.

[AAO]

3. What kind of laywer wouldn't know this?

[rug]

5. Maybe that's why he raised a privacy argument. Good luck with that.

Sounds like he's peppering the record for appeal.

Bye-bye Brigid.

[AAO]

6. One way or another - she's going behind bars.

[Fred Sanders]

20. Suphoenas legally issued can be challenged as to excessive scope and breadth; a Judge will decide.

[Gerhard28]

54. It's not so simple as you think.

Well-established case law holds that if a person voluntarily creates and possesses self-incriminating documents, he or she may nevertheless have to produce them in response to a subpoena. That is the law notwithstanding the privilege against self-incrimination, because the creation of such documents is not "compelled" within the meaning of the Fifth Amendment. (See Fisher v. United States, 425 U.S. 391, 409-410 (1976).)

Even so, the act of producing documents may compel a person to implicitly or inherently admit that responsive papers exist, are in that person's possession or control, and are authentic. In such circumstances, the production of documents is testimonial and, because compelled, may be privileged under the Fifth Amendment. Whether the privilege applies turns on whether the act of production is likely to be incriminating(See United States v. Hubbell, 530 U.S. 27, 36-37 (2000) (affirming dismissal of charges, based on Fifth Amendment violation.)

[Gothmog]

57. There limits to the privilege

I think that the forgone conclusion exemption applies here. It is a forgone conclusion that e-mails exist as to the bridge matter

[66 dmhlt]

61. When DIRECTLY quoting whole paragraphs (as you did) from another source ...

(Unless you're actually the author - Anthony DeCorso)

(1)
You should put those paragraphs in Blockquotes:

Well-established case law holds that if a person voluntarily creates and possesses self-incriminating documents, he or she may nevertheless have to produce them in response to a subpoena. That is the law notwithstanding the privilege against self-incrimination, because the creation of such documents is not "compelled" within the meaning of the Fifth Amendment. (See Fisher v. United States, 425 U.S. 391, 409-410 (1976).)

Even so, the act of producing documents may compel a person to implicitly or inherently admit that responsive papers exist, are in that person's possession or control, and are authentic. In such circumstances, the production of documents is testimonial and, because compelled, may be privileged under the Fifth Amendment. Whether the privilege applies turns on whether the act of production is likely to be incriminating(See United States v. Hubbell, 530 U.S. 27, 36-37 (2000) (affirming dismissal of charges, based on Fifth Amendment violation.)

(2)
You should cite your source:
http://www.callawyer.com/Clstory.cfm?eid=920910

[TroglodyteScholar]

55. As someone suggested upthread...

I can only imagine this is a stalling tactic.

She's protected against giving self-incriminating testimony, but she doesn't get to decide whether to provide subpoenaed documents--and everyone knows that.

[Historic NY]

10. Yup......even shithouse lawyers know that.

1. “Despite its cherished position, the Fifth Amendment addresses
only a relatively narrow scope of inquiries.” It only applies to
testimony “that will subject its giver to criminal liability.”
Garner v. United States, 96 S.Ct. 1178, 1183 (1976).

[Gothmog]

13. Here is a good thread by some DU lawyers on this issue

http://www.democraticunderground.com/10024427107

I personally believe that this claim of privilege will not stand up. The next step will be to file a show cause motion and to argue this privilege claim before a state court judge.

[rug]

18. Thanks. Good stuff there, especially about testimony by production.

[gussmith]

24. Toast?

Toast ..meaning what?

[Scairp]

32. Who does she think she is?

Above the law I guess, just like her former boss. She HAS to produce those documents, full stop.

[targetpractice]

46. Christie's administration is challenging the 5th Amendment? For that alone, he's toast. n/t

[Ratty]

4. Is this not a fitting judgment?

They used their personal accounts to avoid leaving an official trail. I say this is exactly what they get.

[2pooped2pop]

7. oh, so now they call it "reassignment of access lanes to the George Washignton Bridge," n/t

[Bjorn Against]

8. I don't know if she can cite the fifth in this case since it is material related to public service

Maybe some lawyers want to chime in on this because I don't pretend to be an expert on New Jersey law, but my belief is that communications sent out as part of a government job are considered to be the property of the public rather than the official that is sending them. I realize that Kelly broke the rules and used her personal e-mail account, but if I am not mistaken these e-mails would still be considered public record because the law specifies that public e-mail is supposed to be used in all official government communications and I do not believe that breaking that law gives a person immunity from having to hand over those communications.

Any lawyers can correct me if I am wrong, but I do not believe a government official can cite the fifth as a reason to keep official government communications private.

[Gothmog]

14. Here is a thread on this issue by some DU lawyers

http://www.democraticunderground.com/10024427107

[freshwest]

36. Haven't we had public officials claim the Fifth before Congressional committees? n/t

[Bjorn Against]

38. For testimony yes, but I am unaware of them using it to block the release of public documents

[freshwest]

39. And then 'I'll submit that later' came into playf or documents, correct. n/t

[chuckstevens]

9. Jail Time?

If she won't talk, that's her right, but if she won't turn over documents or destroyed them, doesn't that constitute obstruction of justice?

Oh wait... It's OK: she's a Republican! Ken Star can demand a stained dress, but she doesn't have to turn over documents. I am SO FUCKING SICK OF REPUBLICAN HYPOCRISY!

[Gothmog]

16. The next step will be a show cause motion where she could go to jail for contempt

As I understand the procedure, the next step is a motion to show cause and if she loses that motion, she can be put in jail for contempt

[Timez Squarez]

17. Send her to Gitmo.

She'll throw away her Fifth, and take the deal and sing....

[Scairp]

33. Yes it's obstruction

If she has what they want and it they haven't been destroyed then she might avoid a contempt charge. If she's destroyed anything and is trying to avoid an obstruction charge in this feeble attempt to take five, she is in deep shit.

[bkanderson76]

15. Get A Rope...nt

[Mr.Bill]

19. I think she's got the goods on everybody

and she's taking a negotiating stance looking for an immunity deal.

[NastyRiffraff]

22. Definitely she wants immunity

but I'm not sure of her (or her lawyer's) strategy here. I really thought she would sing; she still may in fact. But it's hard to understand what she's doing.

[Mr.Bill]

25. She's simply trying to raise the value of what she has

(or at least the perception of it's value) by withholding it in order to get the best deal. It's also beginning to look like anyone who's in this mess needs immunity on both a state and federal level. This is going to drag on for years. Even if Christie is innocent of everything, he will be too old to run for president by the time he is cleared.

Dozens of lawyers are going to make their careers on this thing. And retire rich.

[AndyTiedye]

27. Sing Sing Sing or goto Sing Sing

[rocktivity]

30. Sing sing sing? Don't mind if I do!

rocktivity

[AndyTiedye]

37. Best Big Band Track Ever

The full version is over 12 minutes long.

No singing at all, of course. I'm sure there's a story behind that title.

[groundloop]

42. Damn, haven't heard that in years

Thanks for posting. I was glad to see that I still know the words to it.

[The Wizard]

44. try this

[NastyRiffraff]

29. Yes, that makes sense

Withholding value often does increase the value. It's a risky dance and one can overreach, though. But you're right about this dragging on.

[Botany]

21. Sorry Ms. Kelly but if you were sending out emails or texts about state government then ....

.... those are not your private property. If I were you I would cop a deal and sing like
a canary.

[chuckstevens]

26. Good Call!

[Spitfire of ATJ]

28. In related news: Chris Christie has insisted Bridgit Kelly release all documents....

Insisting he has nothing to hide.

[Cha]

31. thanks cal! Bookmarking!

[Bernardo de La Paz]

34. When govt officials use non-official email address for official business they should turn it over.nt

[Jeff In Milwaukee]

50. My thought...

These were documents created by a state employee on government time. Don't they technically belong to the government in the first place? Wouldn't refusing to produce these documents be tantamount to theft?

[The Second Stone]

45. Fifth Amendment doesn't protect existing documents

it protects against having to testify against yourself.

[NancyDL]

47. And the Bully Throws His Minions to feed the Wolves at the Door..

...Even though her arrogance brought this on, I feel sorry for this woman. In the near and distant past, I found work with politicians, both left and right. This is the way many of them operate, especially on the right, although I've seen it on the left, as well.

[truth2power]

49. Privacy??? It's amazing how these tools are worried about "privacy" when

it's their OWN sorry asses that are on the line.

Of course, if the American people, as a whole, want privacy, they can just STFU!

[workinclasszero]

51. Give her immunity

And she will sing like a bird!

Christie is goin DOWN!!!!!!

[Dopers_Greed]

53. I wonder which of his cronies is going to sing first

Or maybe they are too afraid of being encased in cement and thrown into the Hudson River.

[Gothmog]

56. 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

[marble falls]

58. Does this mean she's not plea bargaining yet?

[johnfunk]

59. BridgeGhazi bridget is counting on GOP "omerta"...

... but watch Wildstein turn on his high school BFF...er, um, passing acquaintance Christie before you can say "looks like the GOP is running Rand Paul/Sarah Palin in '16"!

[Nanjing to Seoul]

60. They lawyered up and pleaded the fifth fast. But, there is still nothing to see here

Krisp Krispy is innocent. And to prove that, he's ready to pack on another 50 pounds.