2014-01-31 Letter to Reid J. Schar

8/13/2019 2014-01-31 Letter to Reid J. Schar

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M RINO TORTORELL BOYLE P.C.KEVIN H. MARINOJOHN D. TORTORELLA*+JOHN A. BOYLEROSEANN BASSLER DAL PRA

ATTORNEYS AT LAW437 SOUTHERN BOULEVARD

CHATHAM. NEW JERSEY 07928-1488TELEPHONE (973) 824-9300

FAX (973) 824-8425

January 31,2014VI EM IL ND REGUL R M ILReid J. Schar, Esq.Jenner Block353 N. Clark StreetChicago, IL 60654-3456

Re: New Jersey Legislative Select Committee on InvestigationSubpoena Issued January 27 2 14 to William StepienDear Mr. Schar:

ALSO ADMITTED IN NEW YORKALSQ ADMITTED IN PENNSYLVANIA

e-mail: [email protected]

As you know, we represent Bill Stepien, to whom the New Jersey Legislative SelectCommittee on Investigation (the Committee ) has issued a subpoena demanding the productionof documents and things (the Subpoena ). For the reasons set forth below, the Subpoena, a

copy ofwhich is attached to this letter as Exhibit A, violates Mr. Stepien's rights under the FifthAmendment to the United States Constitution; New Jersey's common law privilege against self-incrimination; the Fourth Amendment to the United States Constitution; and Article I paragraph7 of the New Jersey Constitution. Accordingly, while we are mindful of the importance of theCommittee's work, we write to record our timely objection to the Subpoena, which is returnableMonday, February 3, 2014, and to respectfully request that it be withdrawn. I will make myselfavailable to discuss this matter with you and the members of the Committee at your convenience.

OVERVIEWIn invoking the Fifth Amendment and its state law analogue, Mr. Stepien relies on the

settled but underappreciated principle that, as the Supreme Court has emphasized, one of the


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Reid J. Schar, Esq.January 31, 2014 - Page 2Fifth Amendment's 'basic functions is to protect innocent men who otherwise might beensnared by ambiguous circumstances.' Ohio v. Reiner, 532 U.S. 17, 21 (2001) (quotingGrunewald v. United States, 353 U.S. 391, 421 (1957) (internal quotation omitted)). That isbecause, as the Court has explained, truthful responses o an innocent witness, as well as thoseo a wrongdoer, may provide the government with incriminating evidence from the speaker'sown mouth. Reiner, 532 U.S. at 21.

The potential for Mr. Stepien's ensnarement in the ambiguous circumstances that led tothe Subpoena's issuance is undeniable in this case, where a legislative investigation continues tounfold even as a federal grand jury investigation into the same subject matter - allegations oillegality in connection with, inter alia, lane closures at the George Washington Bridge lastSeptember - is being conducted by the United States Attorney for the District o New Jersey.Mr. Stepien has not been subpoenaed as part o that criminal probe and maintains his innocenceo any wrongdoing, criminal or otherwise. But the very real possibility that his act o producingdocuments and things responsive to the Subpoena might compel him to furnish a link in thechain o evidence that could be used to ensnare him in the ambiguous circumstances o acriminal prosecution - and thus force him to become a witness against himself, in violation ohis fundamental right against self-incrimination - is a more than compelling reason to withdrawthat instrument.

So too Mr. Stepien's fundamental right to be free from unreasonable searches andseizures, which is enshrined in the Fourth Amendment to the United States Constitution and,even more expansively, in Article 1 paragraph 7 o the New Jersey Constitution. In invoking


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Reid J. Schar, Esq.January 31,2014 - Page 3that right - which protects the pnvacy interests of ilIDocent persons just as the FifthAmendment and our state's common law safeguard the innocent from self-incrimination - Mr.Stepien does not challenge the Committee's power to perform its investigative function. Inexercising that power (and, in particular, in exploring the circumstances surrounding the GeorgeWashington Bridge lane closures, which led to its creation), the Committee has demanded theproduction of documents from a broad array of entities and individuals. (Exhibit B TheWashington Post, Flurry of subpoenas in New Jersey Bridge Flap, January 17 2014.) But Mr.Stepien must insist that, at least where he is concerned, the Committee's power be deployed in amanner that accords with the constitution and laws of the United States and the State of NewJersey. That insistence is particularly prudent in light of the announcement made weeks ago byAssemblyman John Wisniewski, who headed the Assembly committee originally conducting thisinvestigation and continues his leadership role in the joint Committee, that laws have beenbroken in connection with the lane closures. (Exhibit C CNN, NJ Democrat lawmaker ontraffic scandal: I do think laws have been broken,' Jan. 12,2014.)

Bill Stepien has not broken any laws. He is one of the most well respected politicalconsultants in America. Indeed, as is now widely known, he was poised to become Chairman ofthe New Jersey Republican Party and had already been retained as a consultant to the powerfulRepublican Governors' Association when he was summarily disqualified from both positionsfollowing the publication of two email exchanges he had with executives of the Port Authority.Those exchanges, both ofwhich concerned newspaper articles that appeared after the bridge-laneclosures, do not suggest that Mr. Stepien conceived or authorized the lane closures. Yet in the


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Reid J. Schar, Esq.January 31 2014 - Page 4wake of their publication and his ensuing disqualification, there has been widespread speculationand ample innuendo to the contrary. Under the circumstances, Mr. Stepien simply has no choicebut to invoke the constitutional and common law rights guaranteed to all persons - including,most critically, those innocent of any crime. For these reasons, amplified below, we object to theSubpoena in its entirety, and respectfully urge the Committee to withdraw it.

BACKGROUNDA The Parallel Investigations Into The Bridge Lane Closures.On January 16,2014, the New Jersey General Assembly passed a resolution creating the

Assembly Select Committee on Investigation, to be chaired by Assemblyman Wisniewski, toinvestigate concerns about abuse of government power or an attempt to conceal an abuse ofgovernment power, including, but not limited to, the reassignment of access lanes in Fort Lee,New Jersey to the George Washington Bridge. (Exhibit D, AR-IO 2.) The resolution gavethe Assembly Committee the investigative powers conferred by Chapter 13 of Title 52 of theRevised Statutes of New Jersey, along with the power to report possible violations of any law,rule, regulation, or code to appropriate federal, State, or local authorities. (ld., AR-lO, 3a(8).)The Senate passed a similar resolution that same day creating the Senate Select Committee onInvestigation. (Exhibit E SR-1.)

Upon convening on January 16,2014, the Assembly Committee passed an organizationalresolution authoriz[ing] Chairperson John S. Wisniewski to issue, in accordance with the Codeof Fair Procedure, subpoenas under his signature to compel the production of relevant documentsand other information, [and to] compel the attendance and testimony before the Committee of


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Reid J. Schar, Esq.January 31, 2014 - Page 5any individuals with infonnation relevant to the investigation. (Exhibit F 1116114 Transcript ofMeeting of the Assembly Select Committee on Investigation at 5.) That resolution passed overthe objection of some Committee members to its grant of unilateral[] subpoena power to theChairperson - effectively creating a committee of one - that dispensed with the need tocom[e] before the Committee for a determination as to whether those subpoenas should be

issued in the first instance. (Id. at 5-6; see also id. at 12 ( [A]ll of the procedural sections [ofthe resolution] are basically organized around the principle of authorizing the Chairperson to dothis, and that, and the other thing. And with the greatest respect, Mr. Chairman, it seems to methat 's not a democratic process; that's a series of decisions by fiat. ).)

On January 27, 2014, the Assembly and Senate passed concurrent resolutions forming ajoint committee to investigate all aspects of the finances, operations, and management of thePort Authority ofNew York and New Jersey and any other matter raising concerns about abuseof government power or an attempt to conceal an abuse of government power including, but notlimited to, the reassignment of access lanes in Fort Lee, New Jersey to the George WashingtonBridge. (Exhibit G, ACR-IO 2; Exhibit H, SCR-49 2.) The joint concurrent resolutions,like the resolutions that preceded it, give the Committee the investigative powers conferredpursuant to chapter 13 of Title 52 of the Revised Statutes, as well as the power to reportpossible violations of any law, rule, regulation, or code to appropriate federal, State, or localauthorities. (Exhibit G ACR-IO 3a(1),(8); Exhibit H, SCR-49 2.) The Committee,according to Chainnan Wisniewski, will be run in the same format that we've [previously]


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Reid J. Schar, Esq.January 31, 2014 - Page 6used. (Exhibit I, PolitickerNJ, Assembly OKs new merged SCI to look into Bridgegate, Jan.27,2014.)

The driving force behind the resolutions was Assemblyman Wisniewski's publicly statedbelief that [p ]ublic resources - the bridge, police officers - all were used for a politicalpurpose, for some type of retribution, and that violates the law. (Exhibit C, CNN, NJ Democratlawmaker on traffic scandal: I do think laws have been broken,' Jan. 12, 2014.) ChairmanWisniewski persists in his belief that laws have been broken, (id.), although he candidlyconcedes that the Committee does not know what allegations and concerns may presentthemselves as [the investigation] proceed[s], or where [its] work will lead [it]. (Exhibit J,Transcript ofNew Jersey Legislative Select Committee on Investigation meeting held on January27,2014, at 21.)

Recently, the United States Attorney's Office for the District of New Jersey hasconfirmed that it has opened a grand jury investigation into the bridge-lane closures and hasissued subpoenas in furtherance of that investigation. (Exhibit K, New York Times, U.S.Attorney Subpoenas Christie's Campaign and New Jersey G.O.P., Jan. 23,2014.)

B The Subpoena To Bill StepienOn Tuesday, January 7 2014, it was announced that Mr. Stepien, who had already been

retained as a consultant to the Republican Governors' Association, would become the Chairmanof the New Jersey Republican Party. (Exhibit L The Star-Ledger, Chris Christie campaignmanager to lead N.J. Republican Party, Jan. 7 2014.) That day, Governor Christie said, Bill


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Reid J. Schar, Esq.January 31,2014 - Page 7Stepien is the best Republican operative in the country, and New Jersey Republicans will befortunate to have him leading our party. M)

On Wednesday, January 8 2014, two e-mails surfaced between Mr. Stepien and DavidWildstein, a Port Authority executive. Those post-hoc emails were exchanged in reaction tonews articles questioning the propriety of the lane closures. (Exhibit M.)

On Thursday, January 9,2014, Governor Christie announced that Mr. Stepien would notassume the leadership of the New Jersey Republican Party and would no longer serve as aconsultant to the Republican Governors' Association. (Exhibit N, Washington Post, Firing ofStepien deprives Christie of a key counselor, Jan. 9 2014.)

One week later, on January 16 2014, apparently based on his two after-the-fact e-mailsand ensuing dismissal, the Assembly issued a subpoena to Mr. Stepien demanding that heproduce all communications and records concerning the bridge-lane closures, as well as hispersonal cell phone, calendars, notes, and diaries. (Exhibit 0. Specifically, the subpoenademanded that, for the period September 1 2012 to the present, Mr. Stepien produce thefollowing documents and things:

All e-mails, text messages, and other documents reflecting communicationsregarding the reduction from three to one of the eastbound Fort Lee, New Jerseyaccess lanes to the George Washington Bridge from September 9 2013 throughSeptember 13,2013, (id., Requests Nos. 1-2,4);

All documents sufficient to show the date, time, originating and receivingtelephone number, originating cell site and sector, and duration for all incomingand outgoing calls concerning the bridge-lane closures, (id., Request No.3); All video and audio recordings, and all voice mails, regarding the bridge-laneclosures (i lL Request No.5);


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Reid J. Schar, Esq.January 31,2014 - Page 8

All calendars, day planners, notes, and/or diaries from September 1 2012 to thepresent, (id., Request No.6 ; and All smartphones, tablets, cellular phones, and personal digital or data assistants,or any other similar device used by [Mr. Stepien] at any time from September 12012 to the present, (id., Request No.7 .

On or about January 27, 2014, the Committee issued the identical Subpoena to Mr.Stepien. (Exhibit A.) The Subpoena retains the original subpoena's return date of February 3,2014, and repeats verbatim its demands for documents and things. (See Exhibits A and 0.

This objection and request that the Committee withdraw the Subpoena follows.I THE SUBPOENA SHOULD BE WITHDRAWN BECAUSE IT VIOLATES MRSTEPIEN S FIFTH AMENDMENT RIGHT AGAINST COMPELLED SELF-INCRIMINATION.

A. One f The Principal Functions f The Fifth Amendment Is ToProtect Innocent Persons, Like Bill Stepien, From Being Compelled ToTestify Through The Act f Producing Documents.The Fifth Amendment to the United States Constitution provides that no person shall

be compelled in any criminal case to be a witness against himself. One of that constitutionalguarantee's basic functions is to protect innocent men who otherwise might be ensnaredby ambiguous circumstances. Reiner, 532 U.S. at 21 (emphasis in original); United States v.Scala, 432 F. Supp. 2d 403, 407 (S.D.N.Y. 2006) (explaining that the risk of ' ensnare[ment]'''exists regardless of whether the witness in fact is guilty of anything. ). Indeed, it has long beenheld that the the privilege protects the innocent as well as the guilty, and is therefore properlyinvoked by one who, like Mr. Stepien, denies all culpability. Reiner, 532 U.S. at 18; see alsoCarter v. Kentucky, 450 U.S. 288, 299 (1981) (recognizing that the Fifth Amendment privilege


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Reid J. Schar, Esq.January 31, 2014 - Page 9against self-incrimination is often a protection to the innocent. ); United States v. 133,420.00 inUnited States Currency, No. CV-09-8096, 2010 U.S. Dist. LEXIS 62270, at 18 (D. Ariz. June23,2010) ( The Fifth Amendment protects the innocent and the guilty alike. ).

The Subpoena seeks the production of documents and things rather than oral testimony.But in addition to proscribing compulsory testimony that might tend to incriminate the speaker,the Fifth Amendment protects innocent individuals against the compulsion of acts, such as theact of producing documents in response to a subpoena, that have testimonial significance. Thatis because [t]he act of producing evidence in response to a subpoena has communicativeaspects of its own, wholly aside from the contents of the papers produced. Compliance with [a]subpoena tacitly concedes the existence of the papers demanded and their possession or controlby the [subpoenaed party]. It also would indicate [that party's] belief that the papers are thosedescribed in the subpoena. Fisher v. United States, 425 U.S. 391,410 (1976) (internal citationsand quotation marks omitted). Thus, the government is forbidden from compelling a productionthat would force the producing party to admit the existence and authenticity of documents,United States v. Doe, 465 U.S. 605,609 (1984), which could provide a prosecutor with a 'leadto incriminating evidence,' or a link in the chain of evidence needed to prosecute.' UnitedStates v. Hubbell, 530 U.S. 27, 42 (2000).

B The Subpoena Impermissibly Demands That Mr. Stepien Through HisAct fProduction Testify To The Existence Meaning AndAuthenticity ofDocuments.The Fifth Amendment was clearly designed to protect innocent people like Mr. Stepien

who have already been ensnared by the type of ambiguous circumstances that prompted the


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Reid J. Schar, Esq.January 31, 2014 - Page 10Committee's investigation. Reiner, 532 U.S. at 21. The apparent and sole basis for theSubpoena's issuance to Mr. Stepien is his inclusion on two e-mail chains in which he wasforwarded news articles by Mr. Wildstein following the closure of the bridge lanes. (Exhibit M.)Neither indicates that Mr. Stepien was involved in those lane closures. (Id.) Yet his immediatedisqualification as head of the New Jersey Republican Party and consultant to the RepublicanGovernors' Association has certainly made him a subject if not a target of the Committee'sinvestigation.

Nonetheless, the Committee now seeks to compel Mr. Stepien to provide documents tofurther an investigation that proceeds from Chairman Wisniewski's conclusion that laws havebeen broken. (Exhibit C, CNN, NJ Democrat lawmaker on traffic scandal: I do think lawshave been broken,' Jan. 12, 2014; see also Exhibit G ACR-lO 3a(8) (authorizing theCommittee to report possible violations of any law, rule, regulation, or code to appropriatefederal, State, or local authorities. ); Exhibit H SCR-49 3a(8) (same).) In this highlypoliticized investigation, in which at least one Committee member has concluded that laws werebroken before examining the evidence, the hazards of incrimination - including the risk thatthe Committee will reason backward from the evidence to justify Chairman Wisniewski'sconclusion that laws have been broken - are not trifling or imaginary. Marchetti, 390 u.S.at 53. The simultaneous pendency of a federal grand jury investigation into the identical subjectmatter animating the Committee's investigation makes the threat of incrimination even morepressmg.


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Reid J Schar, Esq.January 31 2014 - Page 11The Subpoena commands that Mr. Stepien search and produce all conceivable electronic

media as well as his calendars, day planners, notes, and/or diaries, for information relating tothe bridge-lane closures. These demands are tantamount to answering a series of interrogatoriesasking a witness to disclose the existence and location of particular documents fitting certainbroad descriptions. Hubbell, 530 U.S. at 41-42; see also Stettin v. Gibraltar Private BankTrust Co., No. 09-34791-BKC, 2011 Bankr. LEXIS 5005, at *12 (Bankr. S.D. Fla. June 7,2011)(denying motion to compel production of all documents and all communications relating to aPonzi scheme and individuals involved in the Ponzi scheme because production of thosedocuments would conced[e] the existence of the documents demanded, [that] the documents areauthentic, and that [the producing party] believes the documents produced are those described inthe subpoena. ).

It is abundantly clear, moreover, that the Committee hopes to use the testimonialaspect of production as a road map to uncover evidence of which it is otherwise unaware.Hubbell, 530 U.S. at 42. The sweeping nature of the Subpoena demonstrates that the Committeeis unable to identify any information that exists and is in Mr. Stepien's possession; it admittedlydoes not know what allegations and concerns may present themselves as [the investigation]

proceeds, or where [its] work will lead [it]. (Exhibit J, 1127 14 Tr. at 21.) The Committee istherefore using the Subpoena to embark on precisely the kind of fishing expedition rejected inHubbell and elsewhere. Hubbell, 530 U.S. at 42 (explaining that the government engaged in animproper fishing expedition to find a link in the chain of evidence leading to prosecution);United States v Ponds, 454 F.3d 313, 325 (D.C. Cir. 2006) (holding that the government could


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Reid J. Schar, Esq.January 31,2014 - Page 12not compel production of documents where it lacked prior knowledge of their existence ordefendant's alleged possession thereof).

The testimonial significance of Mr. Stepien's act of production is heightened herebecause it is unquestionably necessary for [him] to make extensive use of 'the contents of hisown mind' in identifying the documents responsive to the requests in the subpoena. Hubbell,530 U.S. at 43; see also Fisher, 425 U.S. at 410 (stating that one of the communicative aspectsof a responsive production is the implicit indicat[ion] that the producing party belie[ves] thatthe papers are those described in the subpoena. ). The Subpoena demands that Mr. Stepienscour every imaginable source of data from September 1 2012 to the present to identify andproduce documents regarding the reduction from three to one of the eastbound Fort Lee NewJersey access lanes to the George Washington Bridge from September 9, 2013 throughSeptember 13,2013. (Exhibit A Requests Nos. 1-5.) In doing so, the Subpoena impermissiblycommandeers Mr. Stepien's cognitive faculties to tell the Committee whether records whosemeaning is not apparent on their face - for example, a record of a phone call or a text messageasking for a return c l l might concern the bridge-lane closures. Assembling these documentseven goes beyond telling an inquisitor the combination to a wall safe, to follow Hubbell 'sanalogy, 530 U.S. at 43; it is the equivalent of walking the inquisitor through the safe andexplaining the meaning of its contents.

Finally, aside from implicitly attesting to the produced documents' existence andmeanmg, Mr. Stepien's act of production would impermissibly authentic[ate] the


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Reid J Schar, Esq.January 31,2014 - Page 13correspondence, notes, journal entries, text messages, and other documents that the Subpoenademands. Doe, 465 U.S. at 609 (affirming the lower courts' findings that turning over thesubpoenaed documents to the grand jury would admit their existence and authenticity.(emphasis added; id. at 621 (noting the government's failure, as observed by the court ofappeals, to demonstrate that the documents could be authenticated without the [defendant's]explicit or implicit participation. ) (Stevens, J., concurring).

Because the Subpoena plainly seeks to compel Mr. Stepien to attest to numerous factsthrough his act of production, it violates his Fifth Amendment right against compelled self-incrimination and should be withdrawn on that basis alone.II. THE SUBPOENA COMPELS MR. STEPIEN TO PRODUCE PRIVATE

INFORMATION IN VIOLATION OF NEW JERSEY S COMMON-LAWPRIVILEGE AGAINST SELF-INCRIMINATION.In addition to its enshrinement in the Fifth Amendment, the privilege against self-

incrimination has been an integral thread in the fabric of New Jersey common law since [its]begimlings as a state. State v Hartley, 103 N.J. 252, 286 (1986); see also State v Muhammad,182 N.J. 551, 567 (2005) ( New Jersey's privilege against self-incrimination, although notenshrined in the State Constitution, is deeply rooted in this State's common law and codified inboth statute and an evidence rule. ).

New Jersey's privilege against self-incrimination generally offers broader protectionthan its federal counterpart under the Fifth Amendment, Muhammad 182 N.J. at 568, and thatbroader protection is implicated in this case. Unlike the Fifth Amendment right, New Jersey's


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Reid J. Schar, Esq.January 31, 2014 - Page 14privilege does not turn on whether the compelled production is testimonial, but rather onwhether the production intrudes upon the individual's right to a private enclave where he maylead a private life. In re Grand Jury Proceedings of Guarino, 104 N.J. 218, 231-32 (1986)(internal quotation marks and citation omitted); see also id. ( Neither Fisher nor Doe recognizethe fundamental privacy principles underlying the New Jersey common-law privilege againstself-incrimination. Thus, in defining the scope of our common-law privilege, we decline tofollow the Court's rationale for its Doe decision. ); State v Strong, 110 N.J. 583, 594 n.3 (1988)(reiterating that, under the New Jersey Supreme Court's ruling in Grand Jury Proceedings ofGuarino, even the compelled production of documents that is not 'testimonial' in character canviolate a privacy interest that is also protectable under the state privilege against self-incrimination. ).

To determine whether the evidence sought by the government lies within that sphere ofpersonal privacy protected by New Jersey's prohibition on compelled self-incrimination, courtsmust look to the nature of the evidence, and not to the testimonial compulsion involved in theact of producing them, as the Supreme Court has done in Fisher and Doe. Grand JuryProceedings of Guarino, 104 N.J. at 231-32. The test articulated in Grand Jury Proceedings ofGuarino stems from the individual privacy interest originally recognized by the United StatesSupreme Court in Boyd v United States, 116 U.S. 616 (1886), in which the Court upheld thedefendants' 'indefeasible right of personal security, personal liberty and private property' toprotect his 'pr ivate papers' from 'forcible and compulsory extortion' by the government. Idat 630; Grand Jury Proceedings of Guarino, 104 N.J. at 230 ( Central to our state common-law


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Reid J Schar, Esq.January 31, 2014 - Page 15conception of the privilege against self-incrimination is the notion of personal privacy firstembodied in 1886 in Boyd ); id at 231 ( We affirm our belief in the Boyd doctrine ).

The Court in Grand Jury Proceedings of Guarino ultimately held that the documents atissue - business records of a sole proprietor consisting of contracts of sale, cash receipts,journals and general ledgers - did not contain the requisite elements of privacy or

confidentiality essential to be privileged. 104 N.J. at 234-35. But the Court was careful to notethat it might have reached a different result if those business records contained personalcomments or telephone numbers, in which the defendant might have had a legitimateconcern[] of personal privacy. Id at 232 n.9. A fortiori, the Court implied that it would

safeguard an individual's purely personal records; indeed, such private books and papers wereat the core of the zone of privacy protected by Boyd. Boyd, 116 U.S. at 623; see alsoGreenbaum v United States, 280 F 474,481 (6th Cir. 1922) (holding that, under Boyd, it wasunconstitutional to compel the defendant to produce his private books and accounts ).

Personal e-mails and text messages are today's equivalent of the private books andpapers described in Boyd. Courts routinely recognize that individuals reasonably believe andexpect that their personal e-mails are and will remain private. See United States v Warshak, 631F.3d 266, 285-86 (6th Cir. 2010) ( Given the fundamental similarities between email andtraditional forms of communication, it would defy common sense to afford emails lesser FourthAmendment protection. ); United States v Zavala, 541 F.3d 562, 577 (5th Cir. 2008) (notingthat an individual has a reasonable expectation of privacy in private information such as


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Reid J. Schar, Esq.January 31, 2014 - Page 16emails ); United States v. Forrester, 512 F.3d 500, 511 (9th Cir. 2008) ( The privacy interests

in these two forms o communication [email and traditional mail] are identical. ); R.S. v.Minnewaska Area Sch. Dist. No. 2149, 894 F. Supp. 2d 1128, 1142 D. Minn. 2012)( Numerous courts have . . . concluded that individuals maintain a reasonable expectation oprivacy with respect to their private email accounts and that such accounts are entitled to thesame Fourth Amendment protections as conventional letters. ); United States v. Cioffi, 668 F.Supp. 2d 385, 390 n.7 (E.D.N.Y. 2009) ( The government does not dispute that [the defendant]had a reasonable expectation o privacy in the contents o his personal email account. ).

New Jersey and federal courts have similarly recognized that individuals have areasonable expectation o privacy in their telephonic communications, including communicationsmade through cell phones, as well as the data captured by their cell phones. See State v. Hunt,91 N.J. 338, 345 (1982) ( New Jersey has had an established policy o providing the utmostprotection for telephonic communications. ); id. at 347 ( From the viewpoint o the customer, allthe information which he furnishes with respect to a particular call is private. The numbersdialed are private. . [R]eveal[ing] the identities o the persons and the places called [would]reveal the most intimate details o a person's life. ); Zavala, 541 F.3d at 577 ( [C]ell phonescontain a wealth o private information, including emails, text messages, call histories, addressbooks, and subscriber numbers. [The defendant] had a reasonable expectation o privacyregarding this information. ); United States v. Burgard, No. 10-cr-30085, 2011 U.S. Dist. LEXIS9893, at *14 (S.D. Ill. Feb. 2, 2011) ( P]eople ordinarily have a high expectation o privacy intheir cell phones. ). Most recently, the New Jersey Supreme Court extended these privacy


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Reid J. Schar, Esq.January 31,2014 - Page 17protections to information, such as call locations, in the hands of cell-phone providers. See Statev. Earls, 214 N.J. 564, 586 (2013) ( Location information gleaned from a cell-phone providercan reveal not just where people go - which doctors, religious services, and stores they visit -but also the people and groups they choose to affiliate with and when they actually do so, all ofwhich displays an intimate picture of one's daily life. )

Here, the Subpoena demands that Mr. Stepien produce information at the core of hisprotected sphere of personal privacy. Grand Jury Proceedings of Guarino, 104 N.J. at 231-232. Most notably, the Subpoena demands that he produce one of the most personal itemsimaginable - his cell phone - simply because he may have used that phone at some pointfrom September 1 2012 to the present. (Exhibit A, Request No.7.) The Subpoena further

demands that Mr. Stepien produce quintessentially private books and papers - personalelectronic mail transmissions, text messages, instant messages, phone records, and voice

mails concerning the bridge-lane closures, as well as [alII calendars, day planners, notes,and/or diaries from September 1,2012 to the present. (Exhibit A, Request Nos. 1-6.) Becausethe Subpoena compels the production of extensive private data, it violates New Jersey's privilegeagainst self-incrimination and should be withdrawn.

III. THE SUBPOENA'S DEMAND FOR MR. STEPIEN'S CELL PHONE AND HISPERSONAL NOTES, CALENDARS, AND DIARIES VIOLATES THEFEDERAL AND STATE CONSTITUTIONAL PROSCRIPTIONS AGAINSTUNREASONABLE SEARCHES AND SEIZURES.The Fourth Amendment's prohibition against unreasonable searches and seizures

requires that a subpoena be sufficiently limited in scope, relevant in purpose, and specific in


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Reid J. Schar, Esq.January 31, 2014 - Page 18directive so that compliance will not be unreasonably burdensome. See v. Seattle, 387 U.S.541, 544 (1967); accord In re Addonizio, 53 N.J. 107, 128 (1968); Greenblatt v. N.J. Bd. ofPharm., 214 N.J. Super. 269, 276 (App. Div. 1986); Stern v. United States Dist. Court, 214 F.3d4, 17 1 st Cir. 2000). These same protections are guaranteed by Article I, paragraph 7 of theNew Jersey Constitution, which, like its federal counterpart, is premised on the existence of azone of privacy wherein all individuals expect that what they say or do will be protected from

unreasonable government intrusion. State v. Donis, 157 N.J. 44, 51 (1998) (internal quotationmarks omitted).

A subpoena faces more exacting scrutiny where, as here, it demands production ofpersonal records wholly disconnected from any alleged wrongdoing. In re McVane, 44 F.3d

1127, 1138-39 (2d Cir. 1995) (quashing FDIC subpoena to the extent it sought personal financialrecords of family members of directors under investigation where the agency (i) articulated nogrounds to suspect that family members engaged in prohibited asset transfers and (ii) made noshowing as to why [the agency's] stated goal could not be accomplished through more narrowlydrawn subpoenas ); United States v. Lehman, 887 F.2d 1328,1336 (7th Cir. 1989) (holding thatsubpoena was unconstitutionally invasive where it demanded all manner of personal andbusiness transactions conducted by members of the [defendant's] family, some not evenremotely associated with the government inquiry. ); United States v. Inst. for College AccessSuccess, Misc. No. 13-mc-81, 2013 U.S. Dist. LEXIS 104704, at *9 (D.D.C. July 26, 2013)( Courts have limited the enforcement of subpoenas when they infringe on the privacy rightsof individuals who are not the targets of the administrative investigation. ).


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Reid J. Schar, Esq.January 31, 2014 - Page 19Here, the Subpoena demands that Mr. Stepien produce his personal cell phone and

similar devices, as well as [a]ll calendars, day planners, notes, and/or diaries from September1 2012 to the present. (Exhibit A Requests Nos. 6-7.) As shown above, the private data thatmight be found on Mr. Stepien's cell phone, personal notes, diaries, and calendars is within theheartland of the zone of privacy protected by both New Jersey and federal constitutional law.Requests (6) and (7) plainly sweep within their scope all manner of personal and businesstransactions conducted by members of Mr. Stepien's family who are not even remotelyassociated with the government inquiry. Lehman, 887 F.2d at 1336. Those requests should bewithdrawn.

CONCLUSIONAs noted above, Mr. Stepien is both mindful and respectful of the importance of the

Committee's work. But for the reasons set forth above, the Subpoena violates his fundamentalrights against self-incrimination and unreasonable searches and seizures. It is therefore not anappropriate exercise of that body's power, and we respectfully urge the Committee to withdrawit. I will make myself available to meet with you or to appear before the Committee at yourconvenience to discuss the critical concerns addressed above.

Thank you for your consideration of this request.Respectfully submitted,

cc: Mr. William Stepien


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ttp://www.washingtonpost.com/politics/flurry-of-subpoenas-in-new-jersey-bridge-flap/2014/01/17/35afb876-7fc3-11e3-93c1-0e888170b7

Flurry of subpoenas in New Jersey bridge flapBy Robert Costa , Published: January 17

Published: January 17 washingtonpost.c

Subpoenas were served Friday to more than a dozen people with ties to embattled New Jersey Gov.

Chris Christie (R), who is struggling to contain a burgeoning scandal over a days-long traffic jam last y

A New Jersey General Assembly committee investigating the episode has asked 17 Christie associate

submit documents. Assemblyman John Wisniewski (D), the committees chairman, said the recipients

be called to testify before the panel in the coming weeks.

The list includes David Wildstein, a former Port Authority official who recently refused to testify before a

assembly committee. Bill Stepien, Christies former political strategist, and Bridget Anne Kelly, Christie

former deputy chief of staff two Christie allies who were fired by the governor last week also were

served.

Additionally, a number of current Christie staffers including chief of staff Kevin ODowd, deputy chiestaff Maria Comella and press secretary Michael Drewniak were asked to produce materials. So wa

David Samson, the Port Authoritys chairman, who is regarded as one of Christies most influential poli

advisers.

Three organizations, including Christies gubernatorial office and his reelection campaign, were on the

as well.

The subpoenas are broad and require all relevant electronic and written correspondence to be present

The Christie administration has hired Randy Mastro, a high-profile defense attorney at Gibson, Dunn &Crutcher, as counsel.

Wisniewskis committee is one of two legislative probes looking into Septembers lane closures on the

George Washington Bridge, an apparent act of political retribution against a Democratic mayor. The st

Senates committee expects to issue more subpoenas next week.

Alan Zegas, an attorney for Wildstein, said his client is eager to share fresh information. But before he

speaks out, Wildstein is asking state and federal prosecutors to grant him immunity.

If he is conferred immunity, my client will fully cooperate and share his story, Zegas said. In themeantime, he added, Wildstein intends to fully comply with his legal obligations and will voluntarily sup

documents that do not have redactions.

This month, Wildstein released partially redacted e-mails to the legislature regarding the bridge flap. T

e-mails caused a political storm and led the Democratic-controlled state legislature to launch two inqui

Wildstein later cited his right to plead the Fifth Amendment and declined to speak with lawmakers abo

the incident.

My client is willing to speak freely if he is conferred immunity, Zegas said. If he is granted immunity,
http://www.washingtonpost.com/politics/flurry-of-subpoenas-in-new-jersey-bridge-flap/2014/01/17/35afb876-7fc3-11e3-93c1-0e888170b723_story.htmlhttp://www.washingtonpost.com/politics/flurry-of-subpoenas-in-new-jersey-bridge-flap/2014/01/17/35afb876-7fc3-11e3-93c1-0e888170b723_story.html


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ttp://www.washingtonpost.com/politics/flurry-of-subpoenas-in-new-jersey-bridge-flap/2014/01/17/35afb876-7fc3-11e3-93c1-0e888170b7

will fully cooperate. In the meantime, he intends to fully comply with his legal obligations, and we will

voluntarily supply more documents without redactions.

Kevin Marino, an attorney for Stepien, said Friday that his client has received the subpoena and is

reviewing it. He had no comment on whether Stepien would seek immunity before he testifies.

Christie, this years chairman of the Republican Governors Association, will travel to Florida this weeke

to raise money for Florida Gov. Rick Scott (R), who faces a tough reelection race. On Sunday, Christie

attend a reception hosted by Home Depot co-founder Ken Langone.
http://www.washingtonpost.com/politics/flurry-of-subpoenas-in-new-jersey-bridge-flap/2014/01/17/35afb876-7fc3-11e3-93c1-0e888170b723_story.htmlhttp://www.washingtonpost.com/politics/flurry-of-subpoenas-in-new-jersey-bridge-flap/2014/01/17/35afb876-7fc3-11e3-93c1-0e888170b723_story.html


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ttp://www.cnn.com/2014/01/11/politics/chris-christie-traffic-scandal/

NJ Democrat lawmaker on traffic scandal: 'I do think laws have been broken'By Michael Martinez , CNN

updated 11:54 AM EST, Sun January 12, 2014 cnn.c

(CNN)-- The Democratic New Jersey legislator leading an investigation into Republican Gov. Chris

Christie's administration says he believes laws were broken when the governor's aides ordered lane

closures at the nation's busiest bridge.

"I do think laws have been broken," State Assemblyman John Wisniewski told CNN's Victor Blackwell

Christi Paul on Saturday. "Public resources -- the bridge, police officers -- all were used for a political

purpose, for some type of retribution, and that violates the law."

Legislators need to "make sure any violations of law are addressed," said Wisniewski, who's also depu

speaker.

Christie, who had no public activities scheduled for Saturday, and his spokesman couldn't be immedia

reached for comment.

Meanwhile, New Jersey Assembly Speaker-elect Vincent Prieto, a Democrat, will call a special session

Thursday so lawmakers can vote on extending the subpoena power of the investigation led by

Wisniewski, Prieto said.

The past week's revelations "clearly show the need for a continued thorough investigation by the New

Jersey General Assembly," Prieto said. "Many questions remain unanswered about this threat to public

safety and abuse of power."

Even while Democrats call to expand the investigation, Florida Republicans confirmed Saturday thatChristie will visit that state next week to raise money for the re-election effort of Gov. Rick Scott.

Documents: Christie appointees stonewalled queries into lane closures

"Yes, Christie will be here next weekend, and we are looking forward to it," Florida GOP spokesperson

Susan Hepworth said.

In New Jersey, Wisniewski said the legislative committee's investigation into the scandal "would be ma

immeasurably simpler if the governor's office said, 'Please tell us what you'd like. We'll turn over all tho

documents.'"

"If the governor really meant what he said, that he wants to get to the bottom of it ... it would only be fa

for him to make those documents available," Wisniewski said.

On Friday, the New Jersey State Assembly committee investigating the George Washington Bridge

scandal released more than 2,000 pages of documents suggesting politics was behind the lane closur

and showing top Christie aides tried to stonewall media inquiries into the matter.

Read the documents
http://www.cnn.com/2014/01/11/politics/chris-christie-traffic-scandal/http://www.cnn.com/2014/01/10/politics/christie-bridge/index.htmlhttp://www.cnn.com/interactive/2014/01/politics/christie-bridge-scandal-documents/http://www.cnn.com/interactive/2014/01/politics/christie-bridge-scandal-documents/http://www.cnn.com/2014/01/10/politics/christie-bridge/index.htmlhttp://www.cnn.com/2014/01/11/politics/chris-christie-traffic-scandal/


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ttp://www.cnn.com/2014/01/11/politics/chris-christie-traffic-scandal/

Christie, a potential presidential candidate in 2016, has strongly denied involvement in how his aides

ordered the lane closures at the bridge as revenge against a neighboring Democrat mayor who refused

endorse Christie in his successful gubernatorial campaign last November.

The state legislative committee has yet to find any documents indicating Christie was involved in the la

closures, Wisniewski said Saturday.

But Wisniewski charged that it "just strains believability" that Christie had no knowledge of how his staf

orchestrated the lane closures, which created public safety hazards in Fort Lee, New Jersey, where MMark Sokolich had opposed Christie's re-election effort.

Wisniewski also suggested that retribution against the Fort Lee mayor was the motive behind the lane

closures to the bridge, which connects New Jersey and New York, from September 9 to September 13

"I think anything's possible," Wisniewski said. "One thing's clear: The anger that was displayed [...] by

people in the governor's circle after the lane closure was terminated.

"Why are they so angry? Why are they so mad at this process being shut down," Wisniewski asked.

Plenty in his own party happy to see Christie get comeuppance

Christie this week fired his deputy chief of staff, Bridget Anne Kelly, for her role in the lane closure, whi

was captured in e-mail correspondence that was subpoenaed by Democrats investigating the matter.

The e-mail exchanges are among the most damaging evidence so far supporting their assertions the la

closures were politically motivated. The correspondence began three weeks before access lanes to th

bridge were closed.

"Time for some traffic problems in Fort Lee," Kelly said in an e-mail to David Wildstein, then thehighest-level appointee representing the state at the Port Authority of New York and New Jersey, whic

operates the bridge connecting the two states.

"Got it," Wildstein replied.

Wildstein resigned last month from the port authority, where he was the director of interstate capital

projects.

Wildstein asserted the lane closures were part of a traffic study.

Legal woes lurk for Christie over scandal

CNN's Chris Kokenes and Conor Finnegan contributed to this report.

2014 Cable News Network. Turner Broadcasting System, Inc. All Rights Reserved.
http://www.cnn.com/2014/01/11/politics/chris-christie-traffic-scandal/http://www.cnn.com/2014/01/09/politics/christie-conservative-reaction/index.htmlhttp://www.cnn.com/2014/01/10/us/christie-legal-hot-water/index.htmlhttp://www.cnn.com/2014/01/10/us/christie-legal-hot-water/index.htmlhttp://www.cnn.com/2014/01/09/politics/christie-conservative-reaction/index.htmlhttp://www.cnn.com/2014/01/11/politics/chris-christie-traffic-scandal/


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ASSEMBLY RESOLUTION No. 10

STATE OF NEW JERSEY

216th LEGISLATURE

INTRODUCED JANUARY 16, 2014

Sponsored by:Assemblyman VINCENT PRIETO

District 32 (Bergen and Hudson)

Assemblyman LOUIS D. GREENWALD

District 6 (Burlington and Camden)

Assemblyman JOHN S. WISNIEWSKI

District 19 (Middlesex)

Co-Sponsored by:

Assemblyman Wilson

SYNOPSIS

Constitutes special committee of General Assembly entitled Select

Committee on Investigation.

CURRENT VERSION OF TEXTAs introduced.


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AR10PRIETO, GREENWALD

3

lanes, and whether the decision to reassign the lanes violated any1

State or federal laws or any ethics rules, regulations, or codes; and2

WHEREAS, Given that the documents and testimony received by the3committee in response to its subpoenas relating to the finances of4

the Port Authority were limited and incomplete and that the5

documents and testimony received in response to subpoenas6

concerning the reassignment of access lanes in Fort Lee to the7

George Washington Bridge raised additional questions about the8

operations and management of the Port Authority, it is entirely9

fitting and proper for this House to continue to investigate all10

aspects of the finances, operations, and management of the Port11

Authority and any other matter raising concerns about abuse of12government power or an attempt to conceal an abuse of government13

power; now, therefore,14

15

BE IT RESOLVED by the General Assembly of the State of New16

Jersey:17

18

1. There is constituted a special committee of the General19

Assembly entitled the Select Committee on Investigation,20

comprising 12 members to be appointed by the Speaker of the21General Assembly, not more than eight of whom shall be of the22

same political party. The Minority Leader of the General Assembly23

shall submit to the Speaker a list of the Minority Leaders24

recommendations of members to the special committee. The25

Speaker shall appoint the Chair and Vice-Chair of the special26

committee from among the Select Committee on Investigations27

appointed members.28

29

2. The Select Committee on Investigation shall investigate all30

aspects of the finances, operations, and management of the Port31

Authority of New York and New Jersey and any other matter32

raising concerns about abuse of government power or an attempt to33

conceal an abuse of government power including, but not limited to,34

the reassignment of access lanes in Fort Lee, New Jersey to the35

George Washington Bridge.36

37

3. For the purposes of carrying out its charge under this38

resolution, the Select Committee on Investigation shall:39

a. have all the powers conferred under the laws and the40


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4

(2) to hold hearings, take testimony under oath, and receive1

documentary or physical evidence relating to the matters and2

questions it is authorized to investigate or study;3(3) to use any and all reasonable means of interviewing or fact4

gathering, including, but not limited to, preliminary conferences or5

interviews;6

(4) to convene a meeting or hearing to determine the adequacy7

of the return and rule on the objection if a return on a subpoena or8

order for the production of documentary evidence is incomplete or9

accompanied by an objection;10

(5) to utilize the powers provided under R.S.52:13-3 or hold the11

Port Authority in contempt of the committee;12(6) to make findings and reports to the General Assembly of any13

recommendations, including recommendations for enforcement, that14

the committee may consider appropriate with respect to the willful15

failure or refusal of any person to appear before it, to answer16

questions or give testimony during an appearance of that person as a17

witness, or to produce before the committee any books, papers,18

correspondence, other documents and materials, and electronic19

records and data in compliance with any subpoena;20

(7) to respond to any judicial or other process, or to make21application to the courts of this State, any other state, or the United22

States;23

(8) to report possible violations of any law, rule, regulation, or24

code to appropriate federal, State, or local authorities; and25

(9) to adopt additional rules or procedures not inconsistent with26

this resolution; and27

b. take custody and control of all books, papers,28


records and data received by the Assembly Transportation, Public30

Works, and Independent Authorities Committee pursuant to31

subpoenas issued under the powers granted to the committee by32

Assembly Resolution 61 and Assembly Resolution 91 of the 215th33

Legislative Session.34

35

4. a. The Select Committee on Investigation shall be entitled to36

call to its assistance and avail itself of the services of the employees37

of the State of New Jersey, any political subdivision of the State,38

and any agency thereof, as may be required and as may be available39

for that purpose, and to employ any other services as may be40


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6

to respond to any judicial or other process, or to make1application to the courts of this State, any other state, or2

the United States;3

to report possible violations of any law, rule, regulation,4or code to appropriate federal, State, or local authorities;5

and6

to adopt additional rules or procedures.7In addition, the Select Committee on Investigation is to take8

custody and control of all books, papers, correspondence, other9

documents and materials, and electronic records and data received10

by the Assembly Transportation, Public Works, and Independent11

Authorities Committee pursuant to subpoenas issued under the12powers granted to the committee by Assembly Resolution 61 and13

Assembly Resolution 91 of the 215th Legislative Session.14

The resolution provides that the Select Committee on15

Investigation may call to its assistance and avail itself of the16

services of special counsel retained to assist the Select Committee17

on Investigation.18

The resolution expires at noon on Tuesday, January 12, 2016.19


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SENATE RESOLUTION No. 1

STATE OF NEW JERSEY

216th LEGISLATURE

INTRODUCED JANUARY 16, 2014

Sponsored by:Senator STEPHEN M. SWEENEY

District 3 (Cumberland, Gloucester and Salem)

Senator LORETTA WEINBERG

District 37 (Bergen)

SYNOPSISConstitutes special committee of Senate entitled Senate Select Committee

on Investigation.

CURRENT VERSION OF TEXT

As introduced.


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SR1SWEENEY, WEINBERG

2

A SENATE RESOLUTION constituting a special committee of the1

Senate entitled the Senate Select Committee on Investigation.2

3WHEREAS, Recent events have highlighted serious issues with the4

organizational structure and management of the Port Authority of5

New York and New Jersey (Port Authority) and have suggested that6

additional measures are necessary to increase the accountability and7

transparency at the Port Authority; and8

WHEREAS, On August 5, 2011, the Port Authority announced new9

proposed toll and fare increases and held 10 public hearings to10

receive public comment about the proposed increase on one day,11

August 16, 2011, leaving the public little time to learn of, and12comment on, these proposed toll and fare increases; and13

WHEREAS,On August 18, 2011, the Governors of New York and New14

Jersey submitted a letter to the Port Authority expressing their15

disapproval of the proposal and providing an alternate toll and fare16

increase plan, which the Board of Commissioners of the Port17

Authority approved the next day; and18

WHEREAS, A report issued by the United States Government19

Accountability Office in August 2013, entitled Interstate20

Compacts: Transparency and Oversight of Bi-State Tolling21Authorities Could Be Enhanced, was critical of the conditions22

surrounding the approval of the toll and fare increases, suggesting23

that the Port Authority lacked a transparent process for involving24

the public in the decision making; and25

WHEREAS, In response to toll and fare increases approved in August26

2011, the Governors of New York and New Jersey ordered the Port27

Authority to undertake a comprehensive review and audit of the28

agency; and29

WHEREAS, The first part of that review concluded that the Port30

Authority must conduct a meaningful top-to-bottom organizational31

redesign focused on operating efficiencies and rooted in clearly32

defined roles and responsibilities, transparency, accountability, and33

aligned incentives; and34

WHEREAS, Despite the recommendations in the Government35

Accountability Office report and the review and audit conducted at36

the behest of the Governors of New York and New Jersey, the Port37

Authority continues to operate in ways that do not honor the public38

trust and suggest that the Port Authoritys organizational39

management and structure fail to provide sufficient safeguards40


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4

access lanes in Fort Lee, New Jersey to the George Washington1

Bridge.2

33. For the purposes of carrying out its charge under this4

resolution, the Senate Select Committee on Investigation shall have5

all the powers conferred under the laws and the Constitution of the6

State of New Jersey and the United States, including, but not7

limited to, the following powers:8

a. conferred pursuant to chapter 13 of Title 52 of the Revised9

Statutes, including, but not limited to, the power to issue subpoenas10

to compel attendance and testimony of persons and the production11

of books, papers, correspondence, other documents and materials,12and electronic records and data;13

b. to hold hearings, take testimony under oath, and receive14

documentary or physical evidence relating to the matters and15

questions it is authorized to investigate or study;16

c. to use any and all reasonable means of interviewing or fact17

gathering, including, but not limited to, preliminary conferences or18

interviews;19

d. to convene a meeting or hearing to determine the adequacy20

of the return and rule on the objection if a return on a subpoena or21order for the production of documentary evidence is incomplete or22

accompanied by an objection;23

e. to utilize the powers provided under R.S.52:13-3 or hold the24

Port Authority in contempt of the committee;25

f. to make findings and reports to the Senate of any26

recommendations, including recommendations for enforcement, that27

the committee may consider appropriate with respect to the willful28

failure or refusal of any person to appear before it, to answer29

questions or give testimony during an appearance of that person as a30

witness, or to produce before the committee any books, papers,31


records and data in compliance with any subpoena;33

g. to respond to any judicial or other process, or to make34

application to the courts of this State, any other state, or the United35

States;36

h. to report possible violations of any law, rule, regulation, or37

code to appropriate federal, State, or local authorities; and38

i. to adopt additional rules or procedures not inconsistent with39

this resolution.40


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6

! to convene a meeting or hearing to determine the1adequacy of the return and rule on the objection if a2

return on a subpoena or order for the production of3

documentary evidence is incomplete or accompanied by4

an objection;5

! to make findings and reports to the Senate of any6recommendations;7

! to utilize the powers provided under R.S.52:13-3 or hold8the Port Authority in contempt of the committee;9

! to respond to any judicial or other process, or to make10application to the courts of this State, any other state, or11

the United States;12

! to report possible violations of any law, rule, regulation,13or code to appropriate federal, State, or local authorities;14

and15

! to adopt additional rules or procedures.16The resolution provides that the Senate Select Committee on17

Investigation may call to its assistance, employ, and avail itself of18

the services of special counsel retained to assist the Senate Select19

Committee on Investigation.20

The resolution expires at noon on Tuesday, January 12, 2016.21Further, it is the sponsors view and desire that any successor22

joint committee of the Legislature established to investigate: the23

organizational structure and management of the Port Authority; the24

finances, operations, and management of the Port Authority; and25

any other matter raising concerns about abuse of government power26

or an attempt to conceal an abuse of government power, have access27

to documents secured by the Senate Select Committee on28

Investigation and any Assembly Committee conducting an29

investigation of these issues.30


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Meeting Recorded and Transcribed byThe Office of Legislative Services, Publi c Information Office,

Hearing Unit, State House Annex, PO 068, Trenton, New Jersey

Committee Meetingof

ASSEMBLY SELECT COMMITTEE ON INVESTIGATION

"The Committee will meet to consider a Committee resolution

regarding the issuance of subpoenas pursuant to AR-10"

LOCATION: Committee Room 11

State House Annex

Trenton, New Jersey

DATE: January 16, 2014

1:00 p.m.

MEMBERS OF COMMITTEE PRESENT:

Assemblyman John S. Wisniewski, Chair

Assemblywoman Marlene Caride, Vice ChairAssemblyman Louis D. Greenwald

Assemblyman Gordon M. Johnson

Assemblyman Paul D. MoriartyAssemblywoman Linda Stender

Assemblywoman Valerie Vainieri Huttle

Assemblywoman Bonnie Watson ColemanAssemblyman Michael Patrick Carroll

Assemblywoman Bettylou DeCroce

Assemblywoman Amy H. Handlin

Assemblywoman Holly T. Schepisi

ALSO PRESENT:

Charles A. Buono Jr. Aaron Binder Keith A. LoughlinOffice of Legislative Services Assembly Majority Assembly Republican

Committee Aide Committee Aide Committee Aide


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TABLE OF CONTENTS

rs:1-13pnf:14-26


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ASSEMBLYMAN JOHN S. WISNIEWSKI (Chair): Id like

to call this meeting of the Assembly Select Committee on Investigation to

order.

Mr. Buono, would you please call the roll?

MR. BUONO (Committee Aide): Assemblyman Carroll.

ASSEMBLYMAN CARROLL: Here.

MR. BUONO: Assemblywoman DeCroce.

ASSEMBLYWOMAN DeCROCE: Here.

MR. BUONO: Assemblywoman Handlin.

ASSEMBLYWOMAN HANDLIN: Here.

MR. BUONO: Assemblywoman Schepisi.

ASSEMBLYWOMAN SCHEPISI: Here.

MR. BUONO: Assemblywoman Watson Coleman.

ASSEMBLYWOMAN WATSON COLEMAN: Here.

MR. BUONO: Assemblywoman Vainieri Huttle.

ASSEMBLYWOMAN VAINIERI HUTTLE: Here.MR. BUONO: Assemblywoman Stender.

ASSEMBLYWOMAN STENDER: Here.

MR. BUONO: Assemblyman Moriarty.

ASSEMBLYMAN MORIARTY: Here.

MR. BUONO: Assemblyman Johnson.

ASSEMBLYMAN JOHNSON: Here.MR. BUONO: Majority Leader Greenwald.

ASSEMBLYMAN GREENWALD: Here.

MR. BUONO: Vice Chair Caride.

ASSEMBLYWOMAN CARIDE: Here.

1


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MR. BUONO: Chairman Wisniewski.

ASSEMBLYMAN WISNIEWSKI: Present.

We have a quorum.

Ladies and gentlemen, we are here today to begin the process

under the Assembly Select Committee that will continue the work that had

been started by the Assembly Transportation and Independent Authorities

Committee.

The resolution adopted today by the General Assembly invests

in this Committee significant responsibility and authority. It is my goal,

working with each of you, that we can exercise that authority fairly and

answer the questions that we all have.

I know there were a lot of questions raised on the floor about

the process, about special counsel, and I would like to make just a couple of

opening remarks for the record.

The special counsel is being retained by the General Assembly.

The special counsel will work and do its work for this Committee. I want tobe clear, however, we have counsel in Charlie Buono of the Office of

Legislative Services. There are many matters that will confront this

Committee that are routine matters that OLS has always traditionally

handled, and so the expectation is that on those very basic, normal New

Jersey law -- routine issues -- that Office of Legislative Services counsel will

handle those questions.We also have a whole new area that were embarking on that

this Committee and, frankly, many -- no other legislative committee has

embarked on. We are looking at why an employee of the Governors Office

sent that e-mail that closed lanes on the George Washington Bridge. We

2


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want to get to the bottom of that, so weve now embarked on a whole new

area of inquiry that is novel. And for that reason, we wanted to have the

best advice that we could get in terms of carrying out this investigation,

making sure that we are asking the right questions. There is the potential

for other investigatory agencies to get involved on different issues or

perhaps similar issues. We want to make sure we have the right type of

legal counsel to guide us on those multiple jurisdictions to make sure that

we respect those jurisdictional, lines and that we do things the right way

and fairly.

Counsel will be available to all members of the Committee. If

you have a question, what were going to ask is that those questions be run

through the Chair. If there is a question that is more appropriate for OLS,

well hand it off to Charlie Buono and OLS. If its a question that goes to

Jenner & Block, well hand it off to them. I want to make sure that were

not all asking the same question 12 times. I want to try to be efficient and

economical in how we use the resources. They will provide us with valuableguidance in how to ask the questions and do the inquiry that we need to do.

What I want to do at the end of this session is make both

attorneys from Jenner & Block, who are here today, available to the

Committee so that you can ask them any questions youd like. You can

talk to them about their experience and talk to them about their views of

what were about to embark on.What we have to do today is our organizational resolution. For

those of you who had the experience of serving with the Transportation

Committee when we started this process-- According to the Office of

Legislative Services, we need to adopt an organizational resolution that will

3


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guide how we adopt -- how we issue our subpoenas and how we conduct our

investigation. What you have in front of you is that organizational

resolution.

I just want to emphasize, as I did on the floor, that our goal

here is simply to follow the information that we already have, step by step,

so that we can get a better understanding and conclusive answers as to why

this happened. I dont have any predetermined destination. When I

started this investigation I was convinced that we would be looking at the

Port Authority and only the Port Authority, and so Im as surprised as

anybody that were at the point were at. And so were going to not omit

anything, and were not going to exclude anything, and were not going to

have any prejudged decisions. Were going to follow the facts wherever

they may lead us.

In order to do that, this Committee needs to continue its

investigation work. That will involve issuing additional subpoenas. In

order for us to issue those subpoenas, we will need to adopt thisorganizational resolution. And I would be happy to answer any questions

that the members of the Committee have about this resolution after Mr.

Buono explains exactly whats in it.

MR. BUONO: This Assembly Select Committee on

Investigation resolution authorizes the issuance of subpoenas; such other

action as is necessary to further the Committees investigation of all aspectsof the finances, operations, and management of the Port Authority of New

York and New Jersey; and any other matter raising concerns about abuse of

government power or an attempt to conceal an abuse of government power,

4


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including but not limited to the reassigning of access lanes in Fort Lee, New

Jersey, to the George Washington Bridge.

Specifically, this resolution authorizes Chairperson John S.

Wisniewski to issue, in accordance with the Code of Fair Procedure,

subpoenas under his signature to compel the production of relevant

documents and other information, compel the attendance and testimony

before the Committee of any individuals with information relevant to the

investigation.

ASSEMBLYMAN WISNIEWSKI: As we do on the floor,

before we begin discussion Id entertain a motion.

ASSEMBLYWOMAN WATSON COLEMAN: So moved.

ASSEMBLYMAN WISNIEWSKI: Moved.

ASSEMBLYMAN JOHNSON: Second.

ASSEMBLYMAN WISNIEWSKI: Second.

Any discussion or comments?

Assemblyman Michael Patrick Carroll.ASSEMBLYMAN CARROLL: Mr. Chairman, thank you very

much.

Obviously, as your honor said, we havent walked down this

path too often together, let alone in this kind of arrangement. Im

concerned about the language of this particular resolution.

The first paragraph: 1. a. authorizes the Chairman to issuesubpoenas. It doesnt say after we have authorized them. Now, I assume

that the Chairman will not unilaterally issue subpoenas without coming

before the Committee for a determination as to whether those subpoenas

should be issued in the first instance. Is that accurate?

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ASSEMBLYMAN WISNIEWSKI: Im going to continue in the

process that weve started, which is to follow the advice of counsel as we

move through this investigation. Were not going to have a Committee

meeting each time we issue subpoenas. Were going to follow the trail

wherever it leads us. And thats the process that has led us to this point.

Its worked very well. And so my intention under this resolution is to

follow that same process.

ASSEMBLYMAN CARROLL: If I may, Mr. Chairman, that

sort of constitutes a committee of one and, not to be disrespectful, but I

object to that. It seems to me that the Committee ought to meet together

to decide who should come before it, who should be subpoenaed, and the

contents of those subpoenas.

I also note, under paragraph b it says, Documents received by

the Committee shall be in the custody and control of the Chairperson, and

the Chairperson shall be authorized to determine access and the availability

of those documents.Now, I understood the Chairman, downstairs on the floor, to be

saying that the documents would go to OLS and would be in their custody

and subject to their control. And when the documents were, in fact,

received by OLS and sorted, all of the members would have the opportunity

to receive them at the same time.

ASSEMBLYMAN WISNIEWSKI: Thats exactly how I intendto use that power.

ASSEMBLYMAN CARROLL: Would it be possible then, Mr.

Chairman, to suggest an amendment that actually says that?

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ASSEMBLYMAN WISNIEWSKI: Hes not practicing in front

of any courts right now in New Jersey. And if he needed to appear in front

of any courts, Im sure he could be admitted pro hac.

ASSEMBLYMAN CARROLL: Again, it was my understanding

specifically that he was authorized -- the Chair has authorized, as well -- to

appear or to have him appear before a court or answer judicial inquiries.

Not to put too fine a point on this, John, you and I both-- Mr.

Chairman, you and I both practice law, as do some other people. There are

56,000 lawyers in the State of New Jersey. Couldnt you find one who

would be able to represent us here? You say two lawyers are here today.

Im assuming that the people are going to be paying for their airfare to come

out here. And it just seems to me that thats a -- despite Mr. Greenwalds

statement to the contrary downstairs -- that it would be, in the interest of

economy, to find a local attorney to do that.

ASSEMBLYMAN WISNIEWSKI: We wanted to find the best

counsel that we could find who has the experience in complicatedinvestigations such as this, and this is where our search has taken us. And

we are very comfortable with the special counsel that is selected and are

prepared to move forward with special counsel.

ASSEMBLYMAN CARROLL: Okay. Mr. Chairman, I have no

further questions on that, and I defer to my colleagues.

ASSEMBLYMAN WISNIEWSKI: Assemblywoman.ASSEMBLYWOMAN SCHEPISI: Mr. Chairman, not to

reiterate everything that my colleague just said, but I, too, have concerns

about specific language in this. And, unfortunately, I only had an

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opportunity to review it when we came in. I would have preferred to have

been able to have provided some of these comments.

But with 1. a. -- the issuing of the subpoenas-- It is our

understanding, from receiving text messages and press stuff, that there have

been discussions of up to, potentially, 20 different subpoenas that are going

to go out immediately. If we know that there is a universe of people of up

to 20 people that we are going to -- or Mr. Chairman is going to be issuing

subpoenas to, cant we amend it and just say the Committee authorizes its

Chairperson to issue the following subpoenas under his signature of the

following individuals, and additional subpoenas may be issued upon

consultation and approval by the Committee? If were sending out that

number, were not going to have to make another determination for

probably quite a while. So maybe we can spell out a universe of people

were looking to do this with.

ASSEMBLYMAN WISNIEWSKI: I understand your concern

-- the healthy suspicion that I will somehow abuse the power of subpoena.And certainly thats your prerogative to raise that issue in this Committee

meeting.

What our plan is, when were done with this resolution, is to

resolve this Committee into executive session so that we can meet with

counsel, and all of us can discuss the names of the people who will be served

subpoenas.I want to be very clear though. Those people who will receive

them -- some of them may expect them, some of them may not. I would

hate for them to be watching one of the media outlets that are here and find

out on national TV that theyre going to be receiving a subpoena. I would

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rather have them receive it in the appropriate fashion through a process

server, or if they have counsel who has agreed to accept service. And once

that takes place then that becomes public.

And so I appreciate your skepticism. Were going to resolve

into executive session so that you can be made aware of all of the

individuals who will be served subpoenas. And I also want to stress that I

would expect that all of the members of the Committee would protect the

privacy of those individuals until they are served and have an opportunity

to receive them.

ASSEMBLYWOMAN SCHEPISI: That gives me a level of

comfort with respect to that provision.

With provision b, once again, to reiterate what Michael Patrick

Carroll said -- would feel much more comfortable with having OLS be the

keeper of the documents, with the provision that all appointed members of

the Committee shall have equal access to books, papers, correspondence,

other documents and materials, and the like received by OLS, after OLS hashad an opportunity to do whatever it needs to do, and that all of us have

the same timely review of Committee documents by all Committee

members.

Going to the next page with respect to section 3 (sic)-- If we

could put in a proviso on subsection (b) that all appointed members of the

Committee shall have equal ability to call to the members assistance, andto avail to the member, the services of the special counsel retained with

respect to some of the powers that were granting to the Chairman under

this -- such as (c) pursue any legal redress, (g) report possible violations, (h)

report possible violations (sic) -- that those occur only after consultation

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with and recommendation of the legal counsel who is representing all of us.

And that way I think it protects all of us, including yourself, Mr. Chairman,

to have a proviso such as that in there.

And then my last comment is just that any action that is taken

-- that we are giving you and granting you the power to do -- that its just

promptly provided to the members of the Committee; that we are aware of

whats taking place real-time; and if there are any pertinent or relevant

documents or otherwise pertaining to the action being taken, that we all

receive them.

ASSEMBLYMAN WISNIEWSKI: I appreciate your

comments, and I understand your skepticism. Im very comfortable with

the process the Committee has had up to this point, and I think it works

very well. It is my goal, and I said it on the floor and I will say it here

again, to keep all of the minority members apprised as to what we are doing

and if were issuing subpoenas. Im not sure I can commit to real-time. Im

not sure the technology exists to do that. But as soon as possible, we willkeep you apprised of everything that happens and every decision that is

made.

ASSEMBLYWOMAN SCHEPISI: Last question, and then I

promise I am done.

ASSEMBLYMAN WISNIEWSKI: Yes.

ASSEMBLYWOMAN SCHEPISI: Will we have theopportunity, after today, to participate in any decision?

ASSEMBLYMAN WISNIEWSKI: Absolutely. Thats why we

have the Committee.

Assemblywoman Handlin.

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ASSEMBLYWOMAN HANDLIN: Yes, thank you, Mr.

Chairman.

ASSEMBLYMAN WISNIEWSKI: I think we may have too

many mikes on. (referring to PA microphone)

ASSEMBLYWOMAN HANDLIN: We have been reading the

various sections and subsections of this resolution which, again, we just saw

a few moments ago. But it appears to me that all of the procedural sections

-- 1, 2, and 3 -- are basically organized around the principle of authorizing

the Chairperson to do this, and that, and the other thing. And with the

greatest respect, Mr. Chairman, it seems to me thats not a democratic

process; thats a series of decisions by fiat. May we know what decisions

will, in fact, be made democratically and collectively on this Committee?

ASSEMBLYMAN WISNIEWSKI: Were going to follow the

process weve used in the past.

Look, its not possible to have public deliberations about an

investigation, and I think thats essentially what youre suggesting. Theprocess that weve used thus far was greeted with a great deal of skepticism.

Many of the questions that youre asking now, your colleagues who served

on the Assembly Transportation Committee asked the very same questions.

And when we voted on this resolution, many of them did not agree with

adopting this resolution. And then when we got to the hearing where Mr.

Wildstein would not provide the testimony that we wanted, and there was aquestion asked to the authenticity of the subpoenas and a question of the

scope of the subpoenas -- by the time we got to that point, we had a

unanimous vote.

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I think the actions of the Committee thus far speak volumes. I

would ask for your confidence going forward so that we can continue this

investigation. I think that while I understand your skepticism, I think what

youre suggesting is a process that will slow down the investigation. That

will make it harder to get the work done, and Im not supportive of doing

that.

ASSEMBLYWOMAN HANDLIN: Again, with all due respect,

Mr. Chairman, its not a matter of skepticism, and I havent suggested

anything yet. I would just-- Im not a lawyer, but I assume that when there

exists a legal team which is pursuing an investigation, the members of that

legal team confer amongst themselves before taking action. And what I see

in this resolution is essentially no structure that would support that. The

structure supports the appropriation of authority to you so that you can

take a series of actions on behalf of all of the rest of us. And Im simply

asking for you to tell us when we can expect to be consulted or if we can

expect to be consulted, and in what form. Im not saying it has to be beforethe public.

ASSEMBLYMAN WISNIEWSKI: Assemblywoman.

ASSEMBLYWOMAN HANDLIN: I would just like to know

when, as Committee members, we will be able to weigh in.

ASSEMBLYMAN WISNIEWSKI: You will be consulted, and

you will be able to weigh in. But I am not a seer and I cant predict exactlywhen we will meet again, but you will be kept advised and consulted as you

request. This Committee will meet periodically to review where we are and

to have discussions about where we should go. But Im not going to give

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ASSEMBLYMAN WISNIEWSKI: Assemblywoman, youve

asked me a question. Assemblywoman, youve asked me a question; may I

have the opportunity to respond to your question?

ASSEMBLYWOMAN HANDLIN: Yes.

ASSEMBLYMAN WISNIEWSKI: I understand your question,

okay? Weve had a process that the Assemblyman Transportation

Committee has used under my chairmanship, and that process will

continue. This is an identical resolution to the resolution we adopted in the

Assembly Transportation Committee. I believe that process worked very

well. We were able to move very far and uncover information that we were

not expecting to find. And so Im very comfortable with that process. I

know youre not. Im going to ask you to judge me by my actions as we

move forward.

ASSEMBLYWOMAN HANDLIN: Thats fine, except that,

again, this isnt about you, Mr. Chairman. Again, with the greatest respect,

its about--ASSEMBLYMAN WISNIEWSKI: I understand.

ASSEMBLYWOMAN HANDLIN: Its about us, on both sides,

and each of us sitting in each one of these seats, and giving us an

opportunity to participate.

ASSEMBLYMAN WISNIEWSKI: And you will have an

opportunity to participate, and you will have an opportunity to be advised,and you will have the opportunity to be consulted and be part of the

decision making as we move forward.

ASSEMBLYWOMAN HANDLIN: Thank you.

ASSEMBLYMAN WISNIEWSKI: Assemblywoman DeCroce.

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ASSEMBLYWOMAN DeCROCE: Thank you, Mr. Chairman.

Just to be very specific, and Assemblyman Carroll did touch on

the issue earlier about subpoenas being issued. And if I understand

correctly from you, today well go into executive session and, as a

Committee, discuss specific subpoenas that will be issued calling individuals

in.

Outside of that parameter, when this Committee is not meeting

its my understanding, from what youve said, there may be an occasion

where you have to -- or you feel, in the best interest of the entire

Committee, that a subpoena be issued prior to us meeting as a whole. If in

that case that situation should arise, may I ask that, in the form of

confidentiality, you advise each individual member of the subpoenas that

will be issued -- in confidentiality?

Thank you.

ASSEMBLYMAN WISNIEWSKI: Assemblywoman, thank you

for that question.I thought Id made that clear, but if I did not I apologize. And

yes, the intention is-- There may be occasion, there may be facts and

circumstances that arise that require the issuance of a subpoena in between

the occasion of Committee meetings. I cant predict whether that will

happen, but we can all anticipate that that could be a possibility, and

members will be advised in a format similar to what we will do after thismeeting in executive session. Obviously we may not all be in the same

room, but the intent will be similar -- to make sure that the members are

aware of what is about to go out so that you are apprised. But obviously,

again, wed always like to make sure that the folks receiving those

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subpoenas are finding out through the process server or through their

counsel, and not through the media.

ASSEMBLYWOMAN DeCROCE: I agree with that, and I do

appreciate the cooperation.

Thank you.

ASSEMBLYMAN WISNIEWSKI: Thank you.

ASSEMBLYWOMAN SCHEPISI: Mr. Chairman.

Assemblywoman, yes.

ASSEMBLYWOMAN SCHEPISI: I apologize.

Just listening to my colleagues and the responses, I think the

crux of the issue and the concern is-- I keep going back to how the process

worked with the Transportation Committee. And, well, the process may

have worked

2014-01-31 Letter to Reid J. Schar

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Transcript of 2014-01-31 Letter to Reid J. Schar