The following blog post was written by Kenneth Del Vecchio, a well-respected New Jersey criminal defense Attorney, a former New Jersey Judge, a legal book author, a prolific filmmaker, and a good friend of Sullivan Brill.
As U.S. Attorney of New Jersey, Chris Christie would have been frothing at the mouth at the potential prosecutions of a governor and parts of his administration for involvement in scandals with the facts that are currently swirling in the Bridgegate and Hoboken matters. Criminal investigations would already have been underway, churning in a bowlful of Christie jelly, with indictments a sure bet as the proofs of something or another unfolded in due time.
During his eight-year stint in the state's most powerful law enforcement position, Christie, like New York's disgraced former governor Eliot Spitzer, created a bulldozer career by ruining the lives of numerous elected officials. Some of those he prosecuted were guilty of crimes of corruption. Others, however, were charged under ambiguous federal statutes, where their culpability was dubious at best.
Then-U.S. Attorney Christie, in the vast majority of his "corruption-busting" cases, had the facts straight. No one can argue that. He headed an office of the brightest and best in law enforcement, who worked cases methodically, compiling an ironclad dossier of video and audio evidence, confessions, eye witness testimony, and physical evidence. The problem with many of Chris Christie's prosecutions, however, was that many times these facts did not amount to criminal offenses. He cleverly shaped and molded the facts around federal criminal statutes that have muddled legal language and varied interpretations. Laws that were created to criminalize bribery and other acts of political corruption were consistently misused by Christie to nail whoever was in his firing line, regardless of whether the conduct actually violated the law.
Unfortunately for the defendants – an array of state legislators, county freeholders, county executives, party leaders, mayors, councilmen, and even planning, zoning and construction board officials – many of their lawyers were even confused by the charges. It often appeared more palatable to enter into plea agreements and take some minimal prison time rather than face the terror of having the rock-solid facts presented to a jury who surely would not understand the law. Accordingly, to avoid guilty verdicts at trial and the corresponding lengthy terms of incarceration mandated by the strict federal sentencing guidelines, these men and women pled guilty. Thus, the legendary Chris Christie conviction record of abusive public officials was spawned. Building on these political corpses, the Governator-in-waiting generated enormous name recognition throughout New Jersey as a tough-but-straight-talking law enforcement Santa Claus. From his never-ending belly of warped and manipulated statutory law, he delivered one political obituary after another. An eager audience of New Jersey voters and media bought into his erroneous policing rampage, as they had been accustomed to decades of illicit public servant behavior that too often had gone without prosecution. Few, even in the legal communities, realized that these convictions were not rooted in good law. Now, some years later, some of the convictions are being overturned.
So, with an awareness of former U.S. Attorney Chris Christie's specious assault on elected officials' miscreant – but not necessarily criminal – conduct, should he and/or any of his administration be prosecuted under any New Jersey criminal statutes for Bridgegate and the Hoboken-Hammering? Well, let's look at the facts that are currently known and properly apply them to the law—always keeping in mind the frequently said, but all-too-often ignored, fundamental constitutional principle of "innocent until proven guilty."
Official misconduct is a crime that only applies to public servants. Those in such positions of trust (i.e., elected officials, judges, police officers) who commit acts within their positions which they know are “unauthorized” – in exchange for a “benefit” – can be convicted of official misconduct. This is per subsection a. of the statute. Likewise, under subsection b., where a public servant “refrains from performing a duty” in exchange for a benefit, he is guilty of official misconduct. This statute also applies to those public servants who act illicitly in order “to injure another or deprive another of a benefit.” Upon a complete investigation, former Christie Deputy Chief of Staff Bridget Anne Kelly, former Christie campaign manager and staffer Bill Stepien, former Christie Port Authority appointee Michael Wildstein, and Governor Christie himself could be convicted of this offense, which is a second degree crime punishable by five to ten years in state prison.
Allegedly, Kelly, Wildstein, and others ordered that the George Washington Bridge in Fort Lee, New Jersey be closed to create “traffic problems” as some sort of political payback against the Fort Lee mayor or for other improper reasons. If this is true, Kelly and Wildstein – and any who were complicit in the matter, including Christie – likely would be convicted of official misconduct.
Subsection a. of 2C:30-2 provides that a “public servant” is guilty of official misconduct where, “with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit,” he “commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner.” Huh – what does that mean?
Chris Christie, as governor of New Jersey is a “public servant;” Kelly and Stepien, as part of Christie's administration , were also “public servants,” as was Wildstein in working for the public-run Port Authority. If Kelly, Wildstein, and/or Stepien took it upon themselves to order the closure of lanes on the GWB as an act of political retribution (or if Christie demanded it himself), they clearly acted with “purpose” to “injure or to deprive another of a benefit”—as thousands of people were deprived the benefit of a properly functioning major bridge and lost the benefit of emergency services due to the closure. These alleged acts definitively were “relating to their offices” (as these would be direct orders controlled by them) and would obviously be “unauthorized exercises of their official functions,” wherein they “knew” such acts were unauthorized; a fourth-grader would know that closing lanes of perhaps the world's largest bridge – to retaliate against a foe – was not an act authorized as part of his official functions. Accordingly, if the facts ultimately reveal that Christie and/or members of his staff and the Port Authority committed these acts, they are guilty of official misconduct, as all of the elements of the offense would be met.
Under a similar analysis, Christie, Lt. Gov. Kim Guadagno, and Commissioner of Community Affairs Richard Constable could be successfully prosecuted for official misconduct for withholding $100 million dollars in Hurricane Sandy relief aid from the City of Hoboken because Hoboken Mayor Dawn Zimmer refused to ensure the approval of a building project sought by a private entity, the powerhouse real estate developer, The Rockefeller Group. Zimmer, in an accusation so far only supported by her own word, revealed to media and U.S. Attorney Paul Fishman that Guadagno personally told her last May that “The word is that you are against it, and you need to move forward or we are not going to be able to help you. I know it's not right – these things should not be connected – but they are…and if you tell anyone, I will deny it…This project is really important to the governor…This was a direct message from the governor.” Zimmer, who advises that she basically contemporaneously logged the alleged Guadagno threats in her diary, also claims that days later Constable told her, “If you move that forward, the money would start flowing to you.” Zimmer told CNN, "They were holding our Sandy funds hostage” and vowed to take a lie detector test and testify under oath.
If Zimmer's account is true, Guadagno and Constable are guilty of official misconduct. They are both public servants, who were committing acts relating to their public offices (they acted directly under the color of their positions as lieutenant governor and community affairs commissioner). Their alleged thug-style refusal to turn over relief funds would surely be deemed a “knowing” unauthorized exercise of their official functions. Christie, likewise, would be culpable—if he indeed ordered his underlings to deliver the message and thereafter refused to turn over the funds because the private land deal wasn't approved.
It should be noted that Bill Stepien could avoid prosecution under this statute if prosecutors could not prove that he was actually part of Christie's administration or otherwise a “public servant.” Stepien had been Christie's campaign manager, was given the nod to be the statewide GOP chairman, and served in some kind of consulting relationship to Christie until earlier this month. But was he a “public servant”, as defined by the law, at the time of the GWB lane closures? Per 2C:27-1, "public servant means any officer or employee of government, including legislators and judges, and any person participating as juror, advisor, consultant or otherwise, in performing a governmental function, but the term does not include witnesses.” Serving as a campaign manager is a private post. As New Jersey's Republican chairman, one is a party official, which makes him the head of a private organization. While “party officials” can be convicted of offenses like bribery, they are exempt under the official misconduct statute. If, however, Stepien was on the government payroll as a “consultant” or in any capacity whatsoever, then he would be found to be a public servant; otherwise, he could escape prosecution for this reason alone.
RETALIATION FOR PAST OFFICIAL ACTION
In lighter fare, Christie and gang could potentially be convicted of retaliation for past official action, a little-known offense defined in 2C:27-5. This fourth degree crime, which is punishable by a maximum prison term of 18 months, could be applicable in both the GWB and Hoboken matters.
2C:27-5 makes it illegal for a person to retaliate against a public servant for a past official act performed by the official. In order for the retaliation to be a crime, it must be an “unlawful act.” If Christie, Kelly, Wildstein, Stepien and/or any other Christie operatives closed the GWB lanes as retaliation for some “official act” performed by Fort Lee Mayor Mark Sokolich (e.g. – a vote, official decision, or recommendation he made under the color of his office as mayor), then they violated 2C:27-5, as closing the GWB lanes pursuant to such an improper reason would constitute an “unlawful act.” Please note that this statute would not be applicable in the Bridgegate case if the retaliation flowed from anger in the Christie camp because Mayor Sokolich did not endorse Christie in the 2012 governor election—because under that circumstance Sokolich's failure to endorse was not a past “official act” (it was simply a personal decision).
In the event that Christie, Guadagno, Constable, and/or others conspired to withhold the $100 million in relief aid to Hoboken as retaliation for Zimmer's failure to have the Rockefeller Group development project passed, then they would be guilty of this offense. Here, Zimmer's “past official act” would be refusing, as Hoboken mayor, to recommend and/or vote for the land deal to be passed by the city's planning board. The team's retaliation – in refusing to turn over the relief money – without question, would be construed as an “unlawful act,” as it constitutes the crime of official misconduct and also because the city is legally entitled to these funds.
Most are familiar with the crime of bribery, at least in its most basic form. A contractor who offers to pay a councilman $10,000 in exchange for giving him a town's sewer contract is guilty of bribery. However, this statute, as well as multiple others found in Chapter 27 of New Jersey's criminal code, is far more reaching than the normally understood “bribery-type” conduct.
2C:27-2a. provides that the crime of bribery has occurred where a person has either offered or accepted “a benefit as consideration” for matters such as a “decision” or a “vote” or a “recommendation” of a “public servant” on any “public issue.” It is not necessary that the bribe transaction actually be completed; “agreeing to confer” or “agreeing to accept” the benefit is sufficient for conviction. Doesn't this sound like what allegedly happened in Hoboken? According to Mayor Zimmer, a “public servant,” Lt. Gov. Guadagno and Commissioner Constable “offered a benefit” (millions of dollars in relief aid) in exchange for Zimmer's “decision” or “recommendation” to have the city's planning board approve The Rockefeller Group's land development deal, which is a “public issue.” If Zimmer is telling the truth, Guadagno and Constable are guilty of bribery; Christie would be guilty if it is true that he commanded their actions.
A crafty defense attorney may argue that the “bribery” statute may not be applicable in this case because the “benefit” needs to pertain directly to the recipient to whom the benefit is being offered; in this matter, Zimmer. A review of the definition of “benefit” is therefore key. Per 2C:27-1, "benefit means gain or advantage, or anything regarded by the beneficiary as gain or advantage, including a pecuniary benefit or a benefit to any other person or entity in whose welfare he is interested.” A smart prosecutor would counter that the “benefit” element of the crime of bribery is met here because the “benefit” can inure to “any other person or entity in whose welfare he is interested.” Well, Zimmer, as mayor of Hoboken, is interested in the welfare of her constituents and city – in obtaining millions in funds from the state – so the bribery statute would be applicable even though she does not directly gain advantage through the funds. Additionally, a prosecutor could intelligently argue that the Christie team was offering a “benefit” to Zimmer directly, by using the definitional language of “anything regarded by the beneficiary as gain or advantage.” Wouldn't Zimmer stand to gain a ton politically (maybe even gain hero status) if she actually brought in the $100 million of relief aid from the state? All she needed to do was get that Rockefeller project approved. At least according to her…
Other statutes in the bribery chapter of the code that are relevant include 2C:27-4 (unlawful benefits for official behavior), 2C:27-11 (offer of unlawful benefit to public servant for official behavior), and perhaps 2C:27-9 (unlawful official business transaction where interest is involved).
Most understand the crime of perjury, but it is interesting to assess it in the Hoboken matter because, as it currently stands, the entire case rests upon one person's word—and there is a provision in the statute which directly tackles this issue. Pursuant to 2C:28-1, a person is guilty of perjury where he makes a false statement under oath—and knows it to be not true. Perjury is a third degree crime, with a maximum five year term of incarceration.
Simply, if Guadagno, Constable, and/or Christie knowingly tells a lie under oath, they are guilty of perjury. The statute has one caveat, however: something called “corroboration.” The prosecution would not be able to convict any of them of perjury if it only has one person to contradict their testimony. Subsection e. of the statute provides that a person cannot be convicted of perjury “where proof of falsity rests solely” upon one person's contradictory testimony. Accordingly, if the state could only produce Mayor Zimmer to contradict Guadagno et al's testimony, they could not be convicted of perjury. Telling the truth, however, is a fundamental precept in law and justice.
At the very beginning of Chris Christie's political career/carnage, he ran in the 1994 Republican primary for Morris County Freeholder. The now-Gov, in desperately attempting to unseat incumbent rivals Cecelia Laureys and Edward Tamm, ran a TV commercial that falsely accused them of being investigated by the Morris County Prosecutor's Office. Laureys and Tamm sued Christie for slander, the oral form of defamation of character. The case settled in 1996, and, per Tamm, Christie was required to pay money and issue an apology in New Jersey newspapers. Christie indeed apologized, admitting that his statements in the political commercial “were not accurate. Neither of you were under investigation by the Morris County Prosecutor at any time.”
Committing slander – a purposeful act to destroy another's reputation by making false statements – is universally considered beyond the pale of normal political treachery. No doubt, misusing criminal laws and wrongfully prosecuting elected officials is even worse. However, in the Bridgegate and Hoboken-Hammering scandals, the law, under many of the New Jersey statutes, isn't ambiguous, as the above analysis reveals. Accordingly, if law enforcement accumulates the ironclad facts routinely assembled in these types of cases (which remains to be seen), some in the Christie administration should indeed be criminally prosecuted. That said, the facts are still being uncovered, and all should truly be considered innocent until proven guilty. Even Chris Christie himself, who either purposely or unwittingly had not too long ago unjustly prosecuted several colleagues in public service.