New Jersey Gov. Chris Christie could very well find himself a defendant in a criminal prosecution as federal prosecutors investigate his administration's closure of lanes on the George Washington Bridge, spanning the Hudson River, between Fort Lee, N.J., and Manhattan. While he has been quick to distance himself from the gathering storm, there's a very real chance a federal grand jury will be taking a good, long look at him. Here's why.
Christie is New Jersey's top politico, a man with eyes on the Republican nomination for president in 2016. In the language of the law, he is a "state actor" when performing the job of governing New Jersey.
Before last November's gubernatorial race, his administration closed two of the three lanes to the George Washington Bridge in Fort Lee, creating massive traffic delays and mayhem. Emails released to the press suggest that the lane closures were ordered by those close to Christie, if not Christie himself, because Fort Lee's mayor, Democrat Mark Sokolich, did not endorse Christie for re-election. Payback is a lane closure in New Jersey.
This might strike most folks as the ordinary sort of political thuggery one would expect from Tony Soprano's state. But it could easily result in federal criminal charges.
Federal law makes it a crime for a public official to use his office to deprive another person of his or her constitutional rights. A separate statute makes it a crime punishable by up to 10 years in prison for two or more people to seek to harass or intimidate a person in the exercise of their constitutional rights. Both statutes are codified at Title 18 sections 241 and 242 of the United States Code.
In recent years, the Justice Department has flexed its muscles, using these statutes against run-of -the-mill state employees. The statutes were, for example, the backbone of the federal prosecution of four East Haven police officers accused - and, in the case of two officers, now convicted - of violating the rights of people by use of illegal stops, illegal seizures and excessive force. Typically, such claims of unlawful activity have not yielded criminal prosecution but have resulted in mere claims for money damages by those affected.
At the center of a criminal case will be three Christie appointees: David Wildstein of the Port Authority, the governing body managing the bridge; William Baroni, a top Port Authority official; and Bridget Anne Kelly, a former deputy chief of staff to Christie. This past week, an email surface in which Kelly had written to Wildstein stating: "Time for some traffic problems in Fort Lee."
Christie denies knowledge of any of this, of course. And he has either secured the resignation of, or fired, each of the three operatives. He's also held a press conference expressing great sorrow about the shenanigans all around him
That may play among his supporters. Tough-minded federal prosecutors will not be so easy to convince.
Lawmen bring a unique perspective to their view of the 7 billion inhabitants of the known world. Almost all of us, all the time, are simply subjects, persons in whom the government has no real interest. A tiny fraction of people do become "persons of interest." Such people are not suspected of engaging in criminal wrongdoing. They may be mere witnesses, or persons who have access to information prosecutors want. At a minimum, Christie is now a person of interest.
More ominous still is the designation as a "target." Prosecutors who want to terrify a person into becoming a cooperating witness often start by delivering a target letter, informing the recipient that they may well face criminal charges, and informing the person they ought to get a lawyer. Once the lawyer calls, prosecutors will tip a portion of their hand, offering the lawyer the chance to bring the targeted party in for a "proffer session," a chance to answer questions from prosecutors in an "off-the-record" manner, with prosecutors agreeing not to use the statements the target makes against him in any prosecution in exchange for the person waiving his Fifth Amendment right to remain silent. All bets in such a proffer are off should the target lie, however. Ask Martha Stewart, who was convicted of lying to lawmen.
I'm willing to bet Chrstie's three former associates, Wildstein, Baroni and Kelly either have, or soon will, receive hand-delivered target letters. The letters will inform them that the government is investigating their role in a potential criminal investigation involving the closing of lanes on the George Washington Bridge. Savvy lawyers will take those letters as an invitation to barter for leniency in exchange for information about Christie, an offer Kelly, given her email, might be in no position to refuse.
Under federal law, a conspiracy is an agreement between two or more parties to accomplish some unlawful act. This agreement needn't be in writing; it can be formed with far less than a handshake. Indeed, a conspiracy can be proven by use of circumstantial evidence. If one of more of the parties in the conspiracy takes an overt step in furtherance of the conspiracy's motive, all are guilty. Conspiracy charges are a potent carrot in the hands of savvy prosecutors.
Clearly, a prosecution of this sort would be novel. There are also threshold legal difficulties the government would have to overcome to prosecute Christie, or any of his former associates. What constitutional right, for example, did the lane closures implicate?
There are at least two possible avenues open to prosecutors: First, Fort Lee Mayor Sokolich might be conceived of as a victim. Weren't the lane closures intended to harass him for exercising his first amendment right to either endorse a candidate or not?
In the alternative, prosecutors might claim that the folks stuck in traffic on the bridge for hours as a result of the closures are victims. Their right to equal protection of the law as guaranteed by the 14 amendment might well have been abridged.
One thing is certain: An investigation of this sort is not undertaken by the Justice Department without clearance from senior officials in Washington, D.C. Charging a governor of one the nation's most populace states with misuse of his office on the eve of his rolling out a bid to become president is a momentous undertaking.
It's going to take a lot more than fancy footwork by public relations people to keep Christie out of the mix on this one. He'd be wise to lawyer up, and prepare to spend 2014 trying to persuade federal prosecutors he is not a felon. His presidential aspirations should go on the back burner.