On April 9, 2014, the Honorable Mary Jacobson held that two of Governor Chris Christie’s former staffers, Bridget Anne Kelly (former Chief of Staff) and Bill Stepien (former campaign manager) would not have to turn over various documents that were subpoenaed by the New Jersey Legislative Select Committee on Investigation (the “Committee”), which is investigating the so-called “Bridgegate” scandal. While there has been much criticism of the decision as being political, based on an independent analysis, the opinion reaches the correct result. Ultimately, the constitutional rights of Kelley and Stepien outweigh a legislative committee’s investigatory powers, even when a matter of great public interest is concerned. As Judge Jacobson noted in her opinion, “[w]hile legislative committees in New Jersey have broad powers…they do not have the authority to abrogate the Fifth Amendment.”
The question on the mind of many lay people is why the act of merely producing documents violates the Fifth Amendment’s protections against forced self-incrimination. The answer to that question lies in understanding what it means to give “testimony” against one’s self. As the Court noted, “the right against self-incrimination most commonly applies to testimony in the form of answers to questioning by government authorities….” We have all heard or seen someone being informed by a police officer, pursuant to Miranda v. Arizona, that they “have a right to remain silent.” However, this is not the only context in which the Fifth Amendment’s protection against self-incrimination applies.
The issue that has arisen in many cases, and that now arises in the “Bridgegate” subpoena case, is whether there is anything “testimonial” about the act of producing documents. In other words, whether the mere act of producing the records provides some information to the government that the government can then use against the defendants, that is in addition to the information contained in the records. This information can include knowledge of the existence, location, and authenticity of the subpoenaed records that is not already a “foregone conclusion” to the government. In the “Bridgegate” case, the answer to that question is “yes.” As the Court noted, the document requests made by the Committee were very broad, asking for “any and all” documents in certain categories. This would require the defendants to locate and authenticate documents, the existence of which is not a “foregone conclusion” to the government.
As a prerequisite to this entire analysis, it is also required that the person being subpoenaed to produce documents face a credible threat of criminal prosecution. In the “Bridgegate” case, this was a pretty simple analysis for the Court. In addition to statements by Committee Chairman John Wisniewski that “laws have been broken,” at the time of the subpoenas, a federal grand jury investigation into the scandal had already commenced. Therefore, any argument that Kelley and Stepien are not under the threat of a criminal prosecution would be specious.
Under certain circumstances, a person can be compelled to produce records even when they might incriminate that person. One of those circumstances discussed by the Court is the “required records” doctrine. This doctrine provides that a person must turn over records, even if they are self-incriminating, if that person is required to keep those records under a regulatory scheme. However, in the present case, there was no “regulatory” scheme that required Kelley and Stepien to maintain records. Even though Kelley and Stepien were required to maintain certain records as part of “administrative” requirements, the Court refused to extend the “required records” doctrine to administrative schemes.
We typically think of the Fifth Amendment as protecting individuals from being forced to answer questions from law enforcement. However, in seeking to protect the constitutional rights of citizens, courts have broadened the protection against self-incrimination to also include acts that are testimonial in their nature. These acts include the production of documents where the act of production in itself provides information to the government that the government does not already possess and that the government can later use against the person who produced the record. The government already has significant investigatory powers. For that reason, it is important for citizens to protect and assert their rights whenever and wherever those rights exist.