Law & the Courts

Christie’s Bridgegate Maelstrom

Governor Christie greets residents in Fort Lee, N.J., January 9, 2014. (Reuters photo: Lucas Jackson)
Opening statements in the trial suggest that Christie misled the public about his involvement and should have been charged.

The weekend’s terrorist attacks in New York and New Jersey were fortuitously timed for Garden State governor Chris Christie: Not only did he get to project steely determination in a sudden crisis; the jihad diverted attention from the explosive start of the Bridgegate trial. Opening to the New Jersey jury in the case against two of Christie’s most trusted (but now former) aides, a federal prosecutor argued that the governor knew about the 2013 lane shutdown at the George Washington Bridge while it was happening.

This contradicts Christie’s years of indignant (albeit likely false) insistence to the contrary. It also raises a question for the Obama Justice Department: If the governor knew of the partisan, retaliatory shenanigans being executed by his underlings, for his political benefit, and under circumstances in which he had the power to put a stop to them forthwith, why wasn’t he indicted along with his aides?

As readers of these columns know, I am not a Christie fan. In addition, I’ve found his claims of innocence in the Bridgegate scandal implausible from the start — based on both the circumstances and the governor’s economical approach to the truth when it comes to any of his administration’s foibles. Nevertheless, my many years as a prosecutor lead me to cut the governor some slack here, at least until we see the actual evidence.

In conspiracy cases, it is a commonplace for both defendants on trial and the prosecutor to take liberties in heaping blame on the dead and the missing — i.e., those who, though participants in the relevant events, are not present in court as defendants (e.g., fugitives, defendants whose cases are pending, and apparent participants whom the government has chosen not to charge, for reasons that can range from the obvious to the dubious). Political-corruption cases are no exception.

The dynamic is easy to understand. Piling ostensibly damning evidence on an uncharged person is a lay-up for the prosecutor. Since he is absent from the defense table, an uncharged man has no nettlesome lawyer fighting on his behalf to suppress the government’s evidence or at least minimize its impact. And while the defendants on trial may be damaged derivatively by that evidence (otherwise the prosecutor would not be offering it), they will not want to be perceived by the jury as taking on the defense of the uncharged person, so they don’t put up much of a fight. After all, the defendants on trial will inevitably seek to shift blame to the missing, uncharged person as well — to argue to the jury that the defendant is being scapegoated in order to protect some powerful missing person, or to obscure the prosecution’s investigative missteps that allowed the “real” culprit to slip the noose.

Since both sides of the case have motives to exaggerate the culpability of the missing, uncharged person, the lawyers’ opening comments have to be viewed with some skepticism. Rather than jumping to conclusions, it is better to wait for the witnesses’ testimony — to ask whether it is supported or contradicted by the paper trail of e-mails, sundry documents, and investigative reports.

Bottom line, the question is: Is Christie what he has purported to be, or is he the GOP version of the Clintons? To hear the opening statements tell it, the proof is going to tend in the latter direction.

Ah, the Clintons. Remember how Bill started out with “I never had sexual relations with that woman . . . ” but by the end was reduced to quibbling over “what the definition of ‘is’ is”? Remember Hillary’s initial, categorical denial of ever having sent or received any classified information . . . which soon turned into any “information marked classified” . . . which eventually collapsed into the farcical claim that she thought the “(C)” in some of her e-mails (a marking ubiquitous in classified documents at the confidential level) might merely have indicated an effort to put paragraphs in “alphabetical order”?

Well, if there is a Clinton course in dissembling, it’s starting to sound like Christie was a star pupil.  

The governor started out adamant that he knew nothing about the bridge closings carried out by his staff to punish the Democratic mayor of Fort Lee (the town at the New Jersey end of the George Washington Bridge into Manhattan and the Bronx) for refusing to endorse Christie’s reelection bid. It’s a position Christie has seemed to maintain for three years. When he learned of the closings, we were led to believe, he took decisive action, warned staffers to come clean, and fired the wrongdoers.  

Yet, federal prosecutor Vikas Khanna startled the court on Monday, telling the jury (and thus promising to prove during the trial) that two top Christie aides “bragged” about the lane closures in a September 11, 2013, conversation with the governor — i.e., on the third day of the closures, which subsequently continued for another two days. Mr. Khanna says the aides even told Christie that the retaliatory action was taken to “mess” with Mark Sokolich, the recalcitrant Fort Lee mayor. They are said to have boasted to their boss that they were ignoring panicked calls from Mayor Sokolich, who railed that the lane closures were causing a “public-safety emergency.”

As if that were not bad enough, the jury was also informed that Christie and his pals chose to have their belly-laughs — over hardball politics that stuck police, firefighters, and emergency medical personnel in the same bumper-to-bumper traffic as every other enraged motorist — at a 9/11 service memorializing nearly 3,000 murdered Americans, including hundreds of first-responders and 674 New Jerseyans.

As they say in Christie’s biz: bad optics, no?

Importantly, the two aides who allegedly engaged the governor in this conversation are co-conspirators charged in the case: defendant Bill Baroni, Christie’s longtime confidant and, at the time, his top official at the Port Authority (which runs the George Washington Bridge); and David Wildstein, another Christie Port Authority appointee. Wildstein pled guilty last year to conspiracy and civil-rights offenses. He is said to be cooperating with the Justice Department in hopes of reducing a potential 27-month prison term. He will almost certainly be called to testify at the trial, and it would not be surprising if Baroni, too, chose to take the stand in his own defense.

So what has been the governor’s response to these damning accusations? Is he claiming that the prosecutors — from the very U.S. attorney’s office Christie used to lead — are misleading the jury? Is he dismissing the story as a complete fabrication by one or more former aides trying to save their own hides?

Not exactly.

Understandably, Christie is staying publicly mum; any statements he made at this point could be used against him in the not unfathomable event he were summoned to testify. But his spokesman, Brian Murray, referred the press to statements Christie made in 2014. In those, the governor offered a noticeably more modest — we might even say, Clintonesque — denial: Christie did not have foreknowledge of the plan to close the lanes. As the New York Times ominously adds, Christie’s spokesman “declined to address whether the governor knew about the closings while they were happening.”

This unsatisfying version of events, after Christie’s years of characteristically forceful denials, raises lots of questions for the governor. The more pertinent questions, though, should be directed at the Justice Department.

The prosecutors clearly know this: Even before their revelations about Christie could be pounced on by defense lawyers, Khanna felt the need to defend the government’s decision not to indict him. It would be justifiable, the prosecutor allowed, for jurors to wonder “what happened” to “others” — ahem — who “could have, should have, perhaps [perhaps?], known certain aspects of what was going on in Fort Lee.” Nevertheless, Khanna admonished the jurors (as prosecutors typically do when addressing the apparent culpability of an uncharged person) that the sole question before them is whether the defendants on trial are guilty, not whether others not on trial should have been prosecuted.

Paul Fishman, New Jersey’s current U.S. attorney, is not commenting publicly on the case either — and rightly so, now that the trial is underway. In prior statements about the case, though, he has rationalized, as the Times put it, “that merely knowing is not a federal crime.”

Assuming the Gray Lady is accurately reporting Fishman’s assessment, it is simply wrong, for at least two reasons.

First, federal law has long criminalized misprision of a felony. The statute (Section 4 of the penal code) is straightforward:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

Notice, this felony offense applies even to the average person who, through no fault of his own, stumbles upon a crime that is unrelated to him. Christie, in stark contrast, did no such stumbling: These were his underlings acting on his behalf.

Moreover, if the lawyers’ opening statements are to be credited, we are going to hear a great deal of evidence that Christie was actively involved in concealing the real reason for the lane closures: Incredibly positing that a traffic study, rather than political retribution, was afoot. On that score, it is problematic for the governor, to put it mildly, that the other defendant on trial (besides Baroni) is Bridget Anne Kelly, his former deputy chief of staff and confidant. Her lawyer certainly made it sound like Ms. Kelly is not planning to fall quietly on her sword: Counsel accused both Christie and New York governor Andrew Cuomo of participating in a cover-up (an accusation a Cuomo spokesman angrily dismissed).

It would strain credulity for Christie or the Justice Department to suggest that Christie might not have known that the lane closures constituted felony crimes.

It would strain credulity for Christie or the Justice Department to suggest that Christie might not have known that the lane closures, besides being malevolent, constituted felony crimes. The criminality is sufficiently patent that Wildstein has already pleaded guilty. More to the point, Christie is a former U.S. attorney who is well aware of the civil-rights laws and made a name for himself prosecuting political-corruption cases. So if the governor had knowledge of the crime while it was in progress, failed to report it to the FBI or the state police (who work for his executive branch), and took part in concealment, there will be serious questions about why he was not charged with misprision.

The second problem with Fishman’s analysis is Christie’s potential guilt on the same charges Baroni and Kelly are facing. While Christie (if we parse his spokesman’s words), suggests that he cannot be criminally liable if he did not have foreknowledge of the lane-closures plan, that is just not true. To be guilty of conspiracy, a person need not be in on the scheme from the start. If he learns of an ongoing conspiracy, he is deemed to become a member — and thus every bit as guilty as the original conspirators — if he is aware of the scheme’s objectives and knowingly contributes to the scheme in some way.

To repeat, Christie is not just any private citizen in this equation. As the governor for whose benefit the officials carrying out the conspiracy acted, and the superior to whom they answered, Christie had the power and the duty to put a stop to the scheme the moment he learned about it. When a person has a positive legal obligation to act but defaults, that dereliction of duty is the equivalent of an affirmative act in furtherance of the conspiracy.

To end where we started, let’s not get ahead of ourselves. But let’s also recognize that, although a federal prosecutor’s opening statement proves nothing, it does foreshadow what is likely to be proved — the Justice Department wins most criminal trials. In short order, we will know whether Christie has been lying about his complete lack of culpability. If he has been, the Obama administration and Attorney General Loretta Lynch will have a lot of explaining to do to a public already enraged at the two standards of justice in this country — the one that bends for the powerful, and the other that breaks the peons.

If the trial proof conforms to the opening statements, Governor Christie would rightly be under enormous pressure to resign from the job he’s largely absented himself from since being reelected. Of greater moment is his current job: top adviser to Donald Trump and putative chief of transition if there is a Trump administration. Trump has had success hammering “Crooked Hillary.” But will there be a Trump administration if the Donald gifts Mrs. Clinton with a “Crooked Chris” to bash?

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