Bridget Kelly invokes Fifth Amendment, declines to produce subpoened document
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
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 Christies 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, Kellys 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 Attorneys 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
(111,437 posts)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
(67,782 posts)another_liberal
(8,821 posts)In my opinion, Kelly is just delaying in hopes of turning State's Witness with immunity.
Walk away
(9,494 posts)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
(26,349 posts)politicians like him are very difficult to get rid of.
another_liberal
(8,821 posts)That much is true. Some of his enemies, though, are also powerful, and there are many more of them.
Whisp
(24,096 posts)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
(40,656 posts)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
(26,349 posts)enough he or she will grant it without thinking about it first.
NancyDL
(140 posts)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
(82,333 posts)Her records are toast.
AAO
(3,300 posts)rug
(82,333 posts)Sounds like he's peppering the record for appeal.
Bye-bye Brigid.
AAO
(3,300 posts)Fred Sanders
(23,946 posts)Gerhard28
(59 posts)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
(145,839 posts)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
(1,941 posts)(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
(5,477 posts)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
(37,460 posts)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
(145,839 posts)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
(82,333 posts)Toast ..meaning what?
Scairp
(2,749 posts)Above the law I guess, just like her former boss. She HAS to produce those documents, full stop.
targetpractice
(4,919 posts)Ratty
(2,100 posts)They used their personal accounts to avoid leaving an official trail. I say this is exactly what they get.
2pooped2pop
(5,420 posts)Bjorn Against
(12,041 posts)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
(145,839 posts)freshwest
(53,661 posts)Bjorn Against
(12,041 posts)freshwest
(53,661 posts)chuckstevens
(1,201 posts)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
(145,839 posts)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
(262 posts)She'll throw away her Fifth, and take the deal and sing....
Scairp
(2,749 posts)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
(266 posts)Mr.Bill
(24,365 posts)and she's taking a negotiating stance looking for an immunity deal.
NastyRiffraff
(12,448 posts)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
(24,365 posts)(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
(23,500 posts)rocktivity
(44,585 posts)rocktivity
AndyTiedye
(23,500 posts)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
(11,532 posts)Thanks for posting. I was glad to see that I still know the words to it.
The Wizard
(12,556 posts)NastyRiffraff
(12,448 posts)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
(70,639 posts).... those are not your private property. If I were you I would cop a deal and sing like
a canary.
chuckstevens
(1,201 posts)Spitfire of ATJ
(32,723 posts)Insisting he has nothing to hide.
Cha
(298,018 posts)Bernardo de La Paz
(49,069 posts)Jeff In Milwaukee
(13,992 posts)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
(2,900 posts)it protects against having to testify against yourself.
NancyDL
(140 posts)...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
(8,219 posts)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
(28,270 posts)And she will sing like a bird!
Christie is goin DOWN!!!!!!
Dopers_Greed
(2,640 posts)Or maybe they are too afraid of being encased in cement and thrown into the Hudson River.
Gothmog
(145,839 posts)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, Hubbells 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
(57,479 posts)johnfunk
(6,113 posts)... 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
(2,088 posts)Krisp Krispy is innocent. And to prove that, he's ready to pack on another 50 pounds.