What Will Be Governor Christie's Fate?

The blizzard of troubling emails makes it clear that last September's lane closures at the George Washington Bridge weren't purely for a traffic study. They were more political vendetta -- premeditated, vindictive and power abusive -- followed by a desperate and haphazard cover up. Thus the inquisitions and speculative parlor games have begun.

Many wonder if Governor Christie's presidential aspirations are in peril. Others, a step further down the road, question if he can even survive as governor. Me? I'm looking a bit further into the abyss, wondering if he will be able to duck an indictment if and when they start flying (and they look like they eventually could).

As the former United States Attorney for New Jersey, I'm sure Governor Christie can see what I do. This mess looks to be a prosecutor's dream -- likely violation of law, a big target and plenty of evidence to toy with. If I were he, I'd be most concerned about this scenario developing.

Concerning whether the law was broken: If this reckless bullying isn't a crime, what is? The executive director of the Port Authority, Patrick Foye, thought so. It was reported that he authored an email that "called the lane closures 'abusive,' a threat to public safety, and a violation of 'federal law and the laws of both states' [New York and New Jersey]."

A sitting governor, positioned for serious run at the presidency (in 2016), would be a quintessential big target. Quoting Federal Judge Jed S. Rakoff:

"In my experience, most federal prosecutors, at every level, are seeking to make a name for themselves, and the best way to do that is by prosecuting some high-level person...if the government wins such a trial, as it usually does, the prosecutor's reputation is made [resulting in] career-making benefits..."

Some might say this describes Governor Christie's own path up the career ladder.

Now consider what is already in the public domain, with likely more to come, as I'm sure an unrestrained, aggressive, young prosecutor would.

Governor Christie claims he was unaware that his senior staff and political appointees orchestrated the days-long traffic jam. To date, some of those people have resigned their positions, a few have been dismissed, all are under the microscope and none have publicly spoken. On its face, the governor's position -- classic plausible deniability -- is understandable but not necessarily believable. A Rasmussen Reports' poll shows more than half of New Jersey voters (read: jury pool) believe the governor knew about the closings.

If Christie really didn't know did he take the traffic nightmare for many seriously? Did he do all he could to get to the bottom of it? There seems to be a wealth of actions and statements over he last few months that would say "no." It certainly could be posited that he didn't push hard because he didn't want to know. Something a federal prosecutor could potentially consider "willful blindness" -- quoting the United States Supreme Court "...defendants cannot escape the reach...by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances."

With Christie's very public denial of involvement or knowledge, he must be very sure that there is no smoking-gun email implicating him. If such documentation were to surface, that would seem to be a slam-dunk for a prosecutor.

What about those formerly in Christie's inner circle? They are already in hot water, likely to get much hotter. Will they allow themselves to be made scapegoats or will they turn on the governor? You can bet your bottom dollar a prosecutor would pressure them to do so. Again, Judge Rakoff on how that works:

"...you start by 'flipping' some lower level participant...who you can show was directly responsible... [is] willing to cooperate...in order to reduce his sentence [or avoid prosecution all together] With his help, and aided by the substantial prison penalties now available in white-collar cases, you go up the ladder."

I assume Christie's entire inner circle has white-collar law representation by now, particularly those already overboard. Any attorney worth their salt has briefed each of them on how difficult life is going to be and how the cooperator game Rakoff describes works -- you save yourself by singing the prosecutor's song, which is not necessarily "the whole truth" but does the trick.

It seems one of Christie's ex-political operatives, David Wildstein, has been so briefed. In testimony before NJ legislators he exercised his constitutional Fifth Amendment right -- refusing to respond to questions in order to avoid incriminating himself. And his attorney, Alan Zegas, said, "If the attorneys general for New Jersey, New York and the United States were all to agree to clothe Mr. Wildstein with an immunity, I think you might find yourselves in a far different position with respect to information he can provide."

Interestingly and appropriately, the current U.S. Attorney for New Jersey, Paul Fishman, has opened an inquiry into the incident. How hard he pursues justice for the mess swirling around his predecessor will be fascinating to watch. I suspect if this was all about a bank CEO and his staff indictments would fly, but a member of the same club, we'll see...

Governor Christie may keep his seat in Trenton. One day, he may even sit in the White House. For now, he'd better hope a prosecutor isn't intent on having him sit for a spell with former Illinois Governor Ron Blagojevich. There looks to be a great deal for Fishman et al to work with.