Conspirator list could tip government’s hand in Bridgegate

Philadelphia Inquirer
By Andrew Seidman
May 23, 2016

TRENTON – As federal prosecutors and two of Gov. Christie’s former allies prepare for trial in the George Washington Bridge lane-closure case, a separate legal fight has erupted between the news media and an unindicted accomplice that could provide new clues into the government’s theory of how this bizarre story of alleged political revenge unfolded.

The media are fighting for access to a list of people who prosecutors say joined the alleged conspiracy but whom the government did not charge with a crime.

The disclosure of those so-called unindicted coconspirators could reveal how closely tied the government believes the conspiracy was to Christie, who has long maintained that neither he nor his top aides knew of the lane closures, let alone abetted the alleged scheme to punish Fort Lee Mayor Mark Sokolich for refusing to endorse the governor’s reelection in 2013.

The mystery surrounding the coconspirator list has brought new intrigue to the political scandal that exploded in January 2014, just as Christie was building on the momentum from a landslide reelection to pivot toward a White House run. Though Christie dropped out of the presidential race in February, he now holds a high-profile position in Donald Trump’s campaign as head of the businessman’s transition team. The governor has said it is “highly doubtful” that his name is on the list.

Everyone in Trenton wants to know: Who is on the list of unindicted coconspirators? And who is John Doe, the accomplice seeking to block the release of the names?

“Anyone who tells you they’re not playing the John Doe parlor game also has a bridge to sell you,” Joshua Henne, a Democratic consultant, said in an email, which he jokingly signed “aka John Doe.”

The latest legal fight pits the public’s right to judicial records absent a compelling government interest against the unindicted coconspirators’ interest in protecting their reputation without being able to defend themselves in court.

That battle ensued only after the defendants won access to the list, underscoring the confluence of interests driving litigation in the bridge case. Facing charges are Bridget Anne Kelly, Christie’s former deputy chief of staff, and Bill Baroni, former deputy executive director of the Port Authority of New York and New Jersey. They are charged with obtaining by fraud and misusing the agency’s property; wire fraud; depriving the residents of Fort Lee their rights to “localized travel”; and related conspiracy counts.

Former Port Authority official David Wildstein was also charged; he pleaded guilty and is cooperating with the government.

Since the government already has provided a coconspirators list to Kelly and Baroni, the publication of the names would be unlikely to affect their defense strategy. Trial is set for September.

A conspiracy is an agreement between two or more people to commit a crime. The general laws of evidence say the actions and statements of one conspirator are binding on another, said Joseph A. Hayden Jr., a veteran New Jersey criminal defense attorney who isn’t involved in the bridge case.

In this case, that means an email or text message exchanged by unindicted conspirators could be introduced as evidence against Kelly and Baroni, even if the two defendants didn’t receive the messages.

However, before such evidence can be introduced to a jury, prosecutors have to prove the unindicted coconspirators had some relationship with Kelly and Baroni and were “acting pursuant to some agreement” with the defendants, Hayden said.

“You don’t just pull a name out of a hat,” he said, describing how prosecutors determine who participated in the conspiracy.

Peter Vaira, a former U.S. attorney for the Eastern District of Pennsylvania, said there’s a reason for designating someone an unindicted coconspirator:

The person “plays at least a necessary part” of the government’s proof for the charges. He said that the designation was relatively common.

In this respect, the bridge case isn’t breaking new ground. President Richard M. Nixon was an unindicted coconspirator in the Watergate case.

In New Jersey, prosecutors have designated as unindicted coconspirators a state assemblyman in a 2000 racketeering case against a reputed mobster; a municipal court judge as part of a successful corruption prosecution of a Passaic County Republican chairman in 2001; and a fund-raiser for Robert Torricelli’s successful 1996 election to the U.S. Senate, as part of a probe into campaign-finance violations.

But if public disclosure of unindicted coconspirators whose identities are often revealed at trial anyway may offer insight into the government’s case, it also has the potential to unfairly smear reputations. That’s the crux of John Doe’s argument.

Consider the 2004 indictment of David D’Amiano, a top fund-raiser for New Jersey’s then-Gov. Jim McGreevey.

The indictment charged D’Amiano with extorting from a Middlesex County farmer $40,000 in cash and political donations in exchange for promising McGreevey’s help in sweetening the county’s offer for the farmer’s land.

McGreevey wasn’t charged, but the indictment referred to a “high-ranking state official: 83 times, alleging he and others used code words like Machiavelli to signal support for the corrupt deal.

D’Amiano was sentenced to two years in jail.

“In a way, that made him the lucky one,” McGreevey, who resigned amid an extramarital affair and patronage scandal, wrote in his 2006 memoir, The Confession.

“Having been publicly branded a corrupt politician, I never had the chance to defend myself” and dismantle the “shoddy allegations,” McGreevey wrote. “As long as I stayed in government, they would stick to me like glue.”

The U.S. attorney who oversaw the D’Amiano case? Chris Christie.