GWB scandal: There was a traffic jam but was there a crime?James Cohen in The Record, March 25, 2014
It was a traffic jam apparently created for political retribution — not an allegation of bribery or kickbacks — that set off the chain of events that has enveloped Governor Christie’s administration in a scandal that has threatened to derail his presidential ambitions.
Almost from the beginning of the scandal, there has been speculation about what laws may have been broken or what charges could be brought as the circumstances did not mesh with statutes typically called upon for political corruption cases.
In addition, all of the key parties have denied or are staying quiet about involvement. Christie has repeatedly said he did not know about the order to close the Fort Lee approach lanes to the George Washington Bridge. And an internal report commissioned by Christie and expected to be released shortly reportedly clears the governor of any involvement.
But a group of former prosecutors, law professors and criminal defense attorneys say there still may be options for federal investigators probing the lane closures. Among them are laws and legal opinions that have deep roots in constitutional law, they say. And each of those options, while presenting a viable route to prosecution, also presents problems relating to proof.
“There’s a provision of the federal law that makes it a crime to interfere with the right of interstate travel,” said Stephen Gillers, a New York University law professor who has written widely on legal and judicial ethics. “It’s a rather broad statute, and given the clear, undeniable fact that movement across a state line was impeded, it seems to be a statute that would attract the interest of federal prosecutors.”
That statute was a key in prosecuting several cases involving discrimination and violence against African-Americans in the 1960s. Other statutes that might apply include those that relate to conspiracy and extortion, but they present tough hurdles for prosecutors. And if it turns out there was a coverup, charges for obstruction of justice could be used, experts said.
It’s also possible that U.S. Attorney Paul Fishman’s office will ultimately decide not to press federal charges. In that case, state prosecutors could decide to take on the case, using the state’s broad public corruption statutes. Or, no charges could be filed at any level.
While the scandal began with allegations that top Christie officials orchestrated traffic jams on the bridge as political payback, it expanded to include claims that Christie officials tried to strong-arm Hoboken’s mayor into fast-tracking a $1.1 billion development and a look at the overlapping public and private interests of David Samson, the Port Authority chairman appointed by Christie.
The federal investigation is unfolding as a parallel state legislative investigation is taking place. The evidence that has been released so far, much of it in legal briefs or documents subpoenaed by lawmakers, provides only an outline of what a federal case could look like, and several pieces are missing.
Two key witnesses, former Christie campaign manager Bill Stepien and former Deputy Chief of Staff Bridget Anne Kelly – who wrote the infamous “Time for some traffic problems in Fort Lee” email — have refused to cooperate with the legislative investigation, citing Fifth Amendment protections. Their arguments are under review by a state Superior Court judge.
But even if the judge in that case decides in favor of Kelly and Stepien, federal prosecutors have their own powerful tools — such as granting immunity or threatening prosecution on obstruction of justice charges — to compel people to cooperate with their investigation.
“You have a whole host of people involved in this case who will be lower-level figures who will have information prosecutors really want, and they will be signed up to cooperate,” said James Cohen, a Fordham University professor of criminal law. “They will force people to testify. They’ll say, ‘This is what we have on you and if you don’t cooperate we will prosecute you.’ People will be lined up, and I’m sure they are lined up as we speak, to cooperate with federal prosecutors.”
The original allegation, that the bridge’s Fort Lee access lanes were closed to retaliate against Mayor Mark Sokolich for not endorsing Christie, would be the toughest to prosecute as a cut-and-dry corruption case, legal experts said.
“In the George Washington Bridge case, the difference is it was retaliatory,” said a former federal prosecutor who asked not to be identified. “At that point, it was punishment. If there was a threat on the front end, that would get closer to it.”
Evidence of a threat would also open the avenue for federal prosecutors to use the Hobbes Act, a federal statute that was originally enacted to combat racketeering that is often used in political corruption cases, said Robert del Tufo, a former U.S. attorney and a New Jersey attorney general.
Hobbes cases must show obstruction of interstate commerce by robbery or extortion.
“Extortion is defined as getting something from someone consensually because of a threat that was made under color of official right,” del Tufo said, adding that prosecutors in his office would frequently levy such charges. “It was used in my office over and over again.”
A more typical extortion case could be built on Hoboken Mayor Dawn Zimmer’s allegation, that Lt. Gov. Kim Guadagno and Department of Community Affairs Commissioner Richard Constable threatened to withhold Superstorm Sandy aid if Zimmer did not fast-track a real estate development, several legal experts said.
Christie and Guadagno have adamantly denied the allegations and so far the only evidence that has emerged is Zimmer’s word and a diary she said she kept at the time. That could present a challenge for federal prosecutors, who have interviewed Hoboken officials.
A parallel allegation from Jersey City Mayor Steven Fulop could strengthen the prosecutors’ case, Cohen said. Fulop has alleged that Christie officials canceled meetings with him and stopped returning phone calls after the mayor announced he would be endorsing Christie’s 2013 opponent, Barbara Buono.
“Maybe it is politics as usual, but I don’t think a jury is going to see it that way,” Cohen said. “That’s why we have anti-corruption laws, because we don’t want it to be politics as usual.”
Darren Gelber, president of the Association of Criminal Defense Attorneys of New Jersey, said prosecutors might also try to show that Sokolich’s or Fulop’s constitutional First Amendment right to make an endorsement could have been violated.
Other potential charges involve the traffic jam itself. The lane closings gridlocked morning rush-hour traffic for more than four days.
“The fact is, when they talk about, ‘It’s time for some traffic problems in Fort Lee,’ related to the approaches to the bridge, it sure sounds to me like they knew they were going to block interstate traffic,” said Frank Askin, a law professor and director of the Constitutional Rights Clinic at Rutgers University. “Blocking interstate traffic is a federal crime.”
The foundation for such a case would lie in a famous U.S. Supreme Court case in 1966, United States v. Guest. That case involved the murder of an African-American Army reserve officer who was passing through Georgia on his way home from training.
“The constitutional right to travel from one state to another, and necessarily to use the highways and other instrumentalities of interstate commerce in doing so, occupies a position fundamental to the concept of our federal union,” the Supreme Court opinion read.
The court also held that, to prove a conspiracy to violate the constitutional right to travel, it must be shown that there was a specific intent to interfere with that right, regardless of whether the motive was racial discrimination.
Conspiracy charges, which require showing that two or more people conspired to commit an offense against the United States or to defraud the United States, are also a likely avenue for prosecutors looking into both allegations, Gillers and others said. Other charges could involve the misuse of federal money, either through Sandy aid or Port Authority grants.
Prosecutors might also be concentrating on Port Authority officials’ early insistence that the lanes were closed for a traffic study, and Christie’s contention – made to the public in a two-hour press conference – that he knew nothing of the lane closings while they were going on.
“The old saying that the coverup is worse than the crime has meaning here,” Gillers said. “The risk is that anyone who is under investigation made the stupid mistake of destroying emails or agreeing with someone else to present a false story to a federal law enforcement officer.”
It is less clear what charges could emerge from prosecutors’ most recently publicized move, investigating Samson’s overlapping public and private interests. Samson, a Christie appointee and close friend, has been accused of several conflicts of interest in the aftermath of the bridge scandal. The most obvious case would require showing that Samson was personally enriched, Gillers said. But payments to Samson’s company would not count. Nor would violations of internal Port Authority ethics rules.
But Cohen said he thought the case against Samson could easily expand.
“When you’re fooling around with federal money – and some of the money is federal – you’re talking about federal charges,” he said.