On Wednesday, the New Jersey U.S. Attorney’s office announced the opening of a preliminary inquiry into the allegedly retaliatory closing of lanes on the George Washington Bridge. On Thursday, an attorney announced the filing of a potential class action lawsuit against Gov. Chris Christie and others on behalf of New Jersey residents affected by allegedly orchestrated traffic nightmare.
Could Chris Christie or his appointees be found guilty of a crime? To consider the potential risks to the governor, Salon called up Loyola Law School’s Laurie Levenson, a former assistant U.S. attorney and author of the "Federal Criminal Rules Handbook." An edited and condensed version of our Friday conversation follows.
Based on what we know so far in New Jersey, if it were demonstrated that there were some kind of loss of life that resulted in some way from this delay, would that be grounds for some kind of manslaughter charge?
Theoretically. But really only theoretically, because there would be some difficult causation issues. This woman was in her 90s, right? And there was a claim that emergency vehicles didn’t get to her in time.
In a criminal case, the burden’s very high: proof beyond a reasonable doubt. [You] can anticipate that the defense is going to say, “You know, really this was not enough of a contributing factor.”
So, theoretically: sure. Do I anticipate prosecutors will focus on that as the likely charge? Not really.
What do you think are the most likely criminal charges that could emerge out of this, if any?
Well, I think the reason to start a criminal investigation would be to focus on things more like whether there were coverups, whether there was lying -- and if [to] federal officials, that’s a pretty easy felony to make.
I don’t know what kind of investigation has been conducted here. But a prosecutor’s meat and potatoes are getting people who’ve lied either in documents, in communications, in person, to any type of federal investigation.
It is conceivable that there are some regulatory violations that could be criminal as well. The third thing is, since you have multiple people involved, you could get a conspiracy charge ...
What do they need to open a criminal investigation? Nothing, really. I mean, not much. They just need an interest in finding out what happened here, and indeed whether any criminal laws were violated. And the possibility is both state and federal, because you are dealing with the transportation. And an issue also that affected people, as I understand it, even perhaps in multiple states.
So is this an “it’s not the crime, it’s the coverup” kind of situation?
Well, you know, the coverup is always, actually – often, perhaps I should say – the easier, more fruitful charge to go for.
Because what happens in these situations like this, whether you call it “political tricks” or “vendetta” or “stupid political actions,” people realize they crossed the line. And they start covering up and lying about it. And that coverup can very well be a crime as well. In fact, it can be more serious than what was initially done – although that seems to me very serious.
It may have greater political consequences in the end than any type of criminal prosecution. But just the opening of a criminal investigation obviously has a huge impact on people’s lives, employment and politically.
And the other thing to keep in mind is that the way that people save themselves during an investigation is to point fingers at somebody at a higher level. If you want to make a deal with the government, you’ve got to give them someone more significant. So that starts making the people toward the top very nervous.
Is that what you expect will happen in this situation?
I certainly think it can happen …
Oftentimes people just don’t go quietly. And they say, “Somebody above me did know what was going on. They either directed me, or they were part of it.” Or they did what we call “deliberate ignorance”: They knew darn well, they just didn’t want to put their fingerprints on it.
So whether there’s a criminal prosecution or not is actually going to depend on what specific strikes or criminal laws federally they’re looking at.
Deliberate ignorance – is there a clear threshold for that?
We call it sort of an ostrich defense. Head in the sand type of thing.
If you have a statute that says it’s a crime to knowingly do X … then somebody who has a lot of notice that this is happening, but intentionally avoids confirming it, they’re going to meet the legal standard. That’s what deliberate ignorance does. It says that if you really did know, but you didn’t want your fingerprints on it, so you didn’t confirm, you’re still guilty.
And the concept of using government resources or government authority for partisan ends – is that a danger zone in some way here?
It can be ... A prosecutor, typically when they start the investigation, will start broadly. Why not explore all possibilities? Down the road, they know that they are going to have a high burden. So I suspect that if there are charges, they will narrow both in scope and in terms of which individuals they’re looking at.
I talked to Frank Tuerkheimer, a former U.S. attorney who worked on the Watergate --
Right. And that’s exactly what comes to mind.
In what sense?
Because much of this sounds like dirty tricks, right? Political tricks that end up being bigger and more harmful than maybe what people intended. Sort of these political vendettas. And that smacks of Watergate. And every so often, in what they’re doing, there may be a crime.
Turkheimer on the one hand said that “you couldn’t imagine a better definition of an interstate connection” than “a bridge that goes from New York to Jersey,” when it comes to a corruption [law] question. But on the other hand, he said that the political danger for the governor could be much greater than the legal danger, in part because “political retaliation per se” may not be a crime. Do you share that assessment?
One hundred percent. Unquestionably. I think that the political danger is much higher. And it’s going to happen much sooner than any type of criminal investigation. The political consequences are more likely and may even be more severe than any possible criminal investigation.
Because for a criminal investigation, it’s going to be novel. In part because we don’t see this a lot, right?
The defense will be well-represented. It will take a long time. The proof is really high. And, frankly, the punishment for something like this -- I don’t expect people will be going to prison for a long time. So the more severe consequences will probably be the political ones.
It was announced today that a handful of people who live in New Jersey are seeking class action certification for a federal lawsuit against the state, the Port Authority, the governor and others. Their attorney told the Associated Press that there is evidence of “deliberate actions,” that her clients had consequences including being late to work and suffering a panic attack. How does the burden of proof compare [for] that kind of lawsuit?
Overall the burden of proof is lower in a civil case, because what you’re going for is usually monetary damages, sometimes injunctive relief. And so they only have to prove it generally by a preponderance [of evidence], more than 51 percent, and I guess if they have allegations of fraud it may be a little higher. But it is easier, bottom line.
That being said, I don’t think anybody should say that just because this lawsuit’s been filed, it’s going to make it through the courts. There are all sorts of hurdles for them to get over in a lawsuit of this type. From getting class action certification, which judges are not enthusiastic about these days, to what the types of damages are – the psychic damages, or being late to work, or things like that, I’m not sure that judges are going to embrace that -- to trying to apply actual responsibility, to trying to show causation. And civil cases in general drag out forever. If you’re bringing them against the state itself, there can be immunity issues.
So I can see these residents being very upset, and I can see their lawyer saying, “Let’s see what we can get out of a lawsuit.” But this is going to be a long process in the courts.
If you were Chris Christie right now, what would be your greatest area of legal concern?
I’d have a very strong concern about the political consequences, and his credibility consequences, and his overall future …
On the criminal case, it always makes people nervous to see there’s a criminal case. I don’t think he’s worried today that he’s going to be indicted. But I think it’s going to be in the back of his mind, how far up the ladder this is going to go.
In terms of the [civil] lawsuit, I don’t think that’s going to keep him up so much at night, because there are plenty of other defendants, and they’re going to sort of pool together and try to make these procedurally go away. So his number one concern, I think, has to be credibility and his political future.
There’s things that are likely to happen that nobody’s even talked about yet, right? Or maybe they have and they’re not being put in the press as much. I assume that there could be congressional investigations. This is interstate. I think because it’s so politically charged, there will be a lot more people joining on this bandwagon.
What do you expect those congressional investigations would look like?
I don’t know for sure. But you know, to the extent that you’re dealing with federal agencies and interstate transportation, and what type of monitoring elected leaders do, and if there were the finding of any false reports -- the interesting thing about Congress is that they can make their investigations look like whatever they want them to look like.
I think that for those of us who have served in the federal prosecutors’ offices, we appreciate opening the investigation is very different from what will be at the end of an investigation. But in either case, Christie and his colleagues have to take it very seriously.