The Dilemma of Parallel Investigations

Closing entrance lanes to the George Washington Bridge was supposed to be a rather easy and simple task for Governor Christie's administration. But what had been envisioned as an almost childish attempt at political retribution has morphed into a deepening scandal that has spawned multiple investigations and allegations, along with countless hours of cable news analysis.

The governor's inner circle and top team at the Port Authority has been accused of misconduct, not only in relation to the shutting of the bridge lanes, but in other areas as well. These allegations do not stop with Christie's team but also are directed at Lt. Gov. Kim Guadagno, David Sampson and the governor himself. The full list of potential targets is yet unknown. Governor Christie, just a few short months after a landslide re-election and praise as the frontrunner for the 2016 Republican presidential nomination, now sees his administration as the target of investigations from the U.S. Attorney and the State Legislature.

These two investigations exist on parallel, yet vastly different planes. While both are seeking information on the same issues, the outcomes both desire are different. The U.S. Attorney is concerned with one thing and one thing only, the potential for any violations of federal criminal law by those under investigation. At the same time the State Legislature's special investigation committee is focused on politics and investigation. The legislative committee is governed not by looking for specific criminal violations but investigating the entire case and making recommendations, including potentially for the governor's impeachment, if the committee were to so choose.

These conflicting investigations have placed the former Christie aides at the center of the probe, namely Bridget Kelly and Bill Stepien, in a very unusual situation. With subpoenas from the legislative committee for records, they are finding themselves pleading the Fifth Amendment and fighting in state court to prevent the handing over of these records, namely to protect themselves from the U.S. Attorney. If Stepien and Kelly do not exert their Fifth Amendment rights to the committee they will not be able to exert them to the U.S. Attorney.

At a court hearing on her motion earlier last week, Kelly's very attendance sent a subtle message to the U.S. Attorney that she is open to working out an agreement for immunity. Actually she makes a valuable witness for the government. Given her job as the governor's deputy chief of staff, she offers the ability to offer a wide array of information, going beyond that of the bridge closure. While Kelly has a valid argument in terms of her Fifth Amendment rights, she also has a significant burden to overcome in an attempt to win this argument. This is based primarily on the courts being unwilling to interfere in the actions of another co-equal branch of government.

The entire dual set of investigations has created a different world in New Jersey politics. While the U.S. Attorney has one standard, the Legislature has a different one and a case that will play out in public. In addition the legislative committee is comprised of politicians, including members on both sides who have been among the most partisan in the Legislature and have inherent conflicts of their own.

All of these questions and conflicts give way to even more. If the U.S. Attorney finds no federal criminal violations but finds state criminal violations, who takes over then? The state attorney general is a Christie appointee with long ties to the governor. The Attorney General has already shown a reluctance to get involved. In any event, the Attorney General and his office face a significant of conflict of interest issues. Some have suggested handing the separate investigations to the Bergen County prosecutor, but his office is actually overseen by the state attorney general, thus even more conflicts. It almost seems that no matter which direction you look there are conflict of interest issues.

There is, however, a solution. While the governor might be hesitant to appoint an independent special prosecutor to investigate himself and his allies, he can go with a hybrid model. An assistant U.S. Attorney can be designated as a special deputy state attorney general, thus acting as a special prosecutor for the state but one who has independence from the attorney general and governor. This solution would also put someone in place with familiarity of the current federal investigation and with an existing investigative team.

This type of hybrid model would resolve any state based questions and also allow for an impartial investigation of any violations of state criminal laws and does not give any hint of conflict by the players. In fact it is the only state-based model with that will not create even the perception of favoritism or conflict of interest.