Fordham Law


In Bridge Scandal, State Prosecutors Rankled as Feds Take the Lead

James A. Cohen in The Star-Ledger, March 09, 2014

Media Source

TRENTON — Soon after an email surfaced in January linking Gov. Chris Christie’s office to the lane closings at the George Washington Bridge, federal prosecutors at the U.S. Attorney’s Office in Newark jumped in. They even took the rare step of publicly acknowledging their review.

At the same time in Trenton, top officials at the state Attorney General’s Office decided to stay out of it, rankling some veteran prosecutors who say acting Attorney General John Hoffman was too quick to cede a major corruption case to federal authorities.

Lawyers and legal experts interviewed by The Star-Ledger said the Attorney General’s Office was better-positioned to investigate the September lane closings because violations of state law are more apparent, and state prosecutors would be more familiar with the cast of characters.

“The Attorney General’s Office ought to be involved,” said former Attorney General Robert Del Tufo, who served from 1990 to 1993. “It may be that John Hoffman has talked to the U.S. attorney and is staying clear of it because of the implications of being in Christie’s administration.”

The Attorney General’s Office and Christie say politics never factor into decisions about criminal investigations. But over the years, the office has suffered from a public perception that it’s not outside the influence of the governor, who appoints the attorney general.

In a report prepared at the start of Christie’s first term, a team led by former Attorney General David Samson, a Christie ally now himself embroiled in controversy, questioned the ability of the state to independently investigate sensitive corruption cases.

“It has been reported that the Corruption Unit has been unable to undertake certain high-profile and complex corruption prosecutions because, allegedly, attorneys and investigators have feared political reprisal and breaches in confidentiality,” the report said.

Sitting out the biggest scandal to rock the Statehouse in a decade won’t help that perception, Del Tufo said.

“If you create an impression, it becomes the reality,” he said. “If you start looking as if the office is politically intimidated, then you might not have people coming forth with information that should be pursued.”

The Attorney General’s Office declined to confirm or deny the existence of an independent investigation, but two sources with knowledge of the matter said none was underway — and that some veteran prosecutors are frustrated. The sources requested anonymity because they were not authorized to discuss criminal cases.

ON THE SIDELINES


Records obtained by The Star-Ledger show that when the scandal erupted Jan. 8, the state coordinated its approach to remain on the sidelines with the Bergen County Prosecutor’s Office, which covers Fort Lee, the small borough that was gridlocked with traffic during the four days of lane closings.

The criminal justice director, Elie Honig, a former federal prosecutor, sent a text to Prosecutor John Molinelli at 8:54 p.m.: “John. Pls call me asap.”

About 25 minutes later, Honig reached out again in an email, saying, “John — need to speak with you asap. I texted you as well. Pls call my cell.”

Records show that by 9:41 p.m., the two had connected.

A spokesman for the Attorney General’s Office, Peter Aseltine, said they discussed “deconflicting” — jargon for making sure one agency does not interfere with the investigation of another, in this case the U.S. Attorney’s Office.

“In this matter, as in any matter, the Attorney General’s Office, which by law supervises the 21 county prosecutors, promptly coordinates and deconflicts with ongoing federal investigations before initiating a parallel investigation into the same subject matter,” he said.

A spokesman for the U.S. Attorney’s Office, Matthew Reilly, declined to say what, if any, discussions were had with the state, saying, “We don’t discuss the details of our inquiry.”
Molinelli, a Democrat, declined to comment on what he discussed with Honig. But he said he routinely has conversations with the Attorney General’s Office to make sure investigations do not overlap.

Two leading state senators, Ray Lesniak (D-Union) and Loretta Weinberg (D-Bergen), have called on Molinelli to take up the case. Lesniak said some tied to the administration may have committed official misconduct, a state offense and outside federal jurisdiction.
“Because the attorney general is in an obvious conflict of interest, that investigation should — indeed must — be pursued by the Bergen County prosecutor,” Lesniak said.

JOBS IN LIMBO


Molinelli and Hoffman don’t have much job security. Christie has sought to replace Molinelli with Gurbir Grewal of Glen Rock, a former federal prosecutor and a Democrat, but the nomination was not confirmed by the Senate before the end of the last legislative session. Christie has not nominated anyone for the post this year, leaving Molinelli in limbo.

Hoffman is in a similar position. He was named acting attorney general in June to replace Jeffrey Chiesa. Christie intended to replace him with his chief of staff, Kevin O’Dowd, but that plan was scuttled as the bridge scandal unfolded this year. In his acting capacity, Hoffman could be removed by Christie for any reason. The governor last year nominated him to be a state judge, but the Senate never considered it. Whether he gets nominated again is up to Christie.

“If Hoffman said he was getting involved with these investigations, Christie would be hard-pressed to fire him because it wouldn’t look good, but he doesn’t seem to care about that,” Del Tufo said.

Aseltine said there was no discussion between anyone at the governor’s office and the attorney general or other top officials about a possible criminal investigation into the lane closings or how to coordinate with the U.S. Attorney’s Office.

A spokesman for the governor’s office, Kevin Roberts, said, “As the governor has said publicly many times before — due to his own experience as a federal prosecutor — decisions pertaining to criminal matters are left exclusively to law enforcement officials.”

State investigations into top members of a governor’s administration have been few and far between, ranging from a corruption conviction against Secretary of State Paul Sherwin, an ally of former Gov. William Cahill in the early 1970s, to the conviction of former state Commerce Department chief of staff Lesly Devereaux in 2007 for charges that included trying to hide $11,000 in contracts awarded to family members.

The Attorney General’s Office has shown of late that it’s not afraid to target Republicans and Democrats, taking a guilty plea from former Assemblyman Al Coutinho, an Essex County Democrat who had a good working relationship with Christie, for stealing money from his family’s charitable foundation, and charging former Republican Assemblyman Robert Schroeder of Bergen County for writing millions in bad checks.

STATE VS. FEDS


Though the state has taken a backseat in the bridge scandal so far, it could still get involved, said Matheu Nunn, a former assistant prosecutor in Morris County. State and federal authorities often coordinate investigations and sometimes work jointly, Nunn said.
“Maybe the thought was it’s better to have the feds look at it because the governor has no executive authority over the U.S. Attorney’s Office,” he said.

There is a good chance the U.S. Attorney’s Office will find state law violations and refer the case back to the attorney general, he said. State prosecutors would then be shielded from claims of politics because the investigation was conducted by an independent party.

And if Christie is cleared by U.S. Attorney Paul Fishman, a Democrat, few will question it.
“It certainly would go a long way toward putting the whole issue to bed, and you wouldn’t have an outcry of, ‘Oh the governor controls the attorney general and appoints the attorney general, of course they didn’t find anything,’ ” he said.

James Cohen, a law professor at Fordham University, said it was “very unusual” that the state hasn’t set prosecutors loose. “They know where the bodies are buried, they can knock on the right doors, try to get information and pursue that information,” Cohen said.

Weinberg, meanwhile, questioned the lack of investigation when, at the same time, the Attorney General’s Office retained Randy Mastro of Gibson, Dunn & Crutcher at $650 an hour for Christie to conduct an internal review of his own office.

The Attorney General’s Office is also considering requests by several executive branch employees for representation in the bridge matter. A spokesman for the office, Leland Moore, declined to identify the employees or say how the state determines who gets a lawyer.