The two defendants’ discovery motions, filed in the early hours of Wednesday morning, total several hundred pages in length. Here’s a brief rundown of the legal highlights:
1. Bill Baroni is seeking a change of venue because of pretrial publicity and press coverage. In all likelihood, this request will not be granted and his trial will take place in Newark, New Jersey.
2. Both Baroni and Bridget Anne Kelly are seeking the names of unindicted co-conspirators and allege that the government has withheld potentially exculpatory evidence from discovery.
3. They also allege that the law firm retained by Governor Christie’s office at public expense, Gibson Dunn Crutcher – remember the Mastro Report? – produced files that are, in the words of Kelly’s attorney, “not only unsearchable… [but] also randomly produced in massive PDF files that prevent counsel from effectively reviewing or organizing” them.
Remember that Gibson Dunn partner Randy Mastro led an internal investigation that ‘exonerated’ Governor Christie from any wrongdoing in the lane closures. The firm is not only fighting to make sure nobody sees notes gathered during interviews conducted with Christie staffers to produce the Mastro Report; they’re also turning over subpoenaed documents to prosecutors and defense lawyers in the form of ginormous gigabyte-sized PDF files that might as well have been sorted and organized by the Collyer brothers.
4. Defense lawyers also allege that Gibson Dunn is aggressively blocking the disclosure of emails, calendars, and documents from the governor’s office that they have a right to see. There is, for example, not a single email from Chris Christie’s official email account included in the 1.7 million documents being reviewed in this case. Some emails from the governor’s personal account were not produced by Gibson Dunn, either, and only came to light because they were disclosed by other parties. Mastro and his team have asserted privilege over nearly 9,500 emails and documents, including sixteen emails between Christie aides and either Wildstein or Baroni.
THE PURLOINED HARD DRIVE
The motion filed by Bill Baroni, who is actively working alongside his attorneys as he prepares for an April trial date, opens with the eye-popping revelation that David Wildstein, the former director of interstate capital projects at the Port Authority and onetime high school friend of Governor Christie, “stole” Baroni’s hard drive shortly before he was forced to leave the agency in December 2013.
Baroni only learned that the drive was in the hands of prosecutors in August through a discovery letter. It had been replaced when he and Wildstein were working at the Port Authority, and the two decided to keep it since it contained sensitive political information. At some point, Wildstein pocketed it, and when he left the Port Authority he took it with him – even as he left behind family photos, “rare books,” and other personal effects.
Wildstein had long been prepared to lose his lucrative job at the agency; just after the lane closures became public he mentioned bringing empty boxes to work in case he was suddenly fired. It was not hard to guess that he left the agency with files of some kind as an insurance policy against future prosecution; his attorney said in January 2014 that he was prepared to disclose evidence about the lane closures in exchange for an immunity deal.
It is notable that Wildstein took the hard drive with him during a time when it would have certainly been covered by a subpoena issued to the Port Authority and its officials by New Jersey lawmakers investigating the lane closures.
A request for comment from the chairman of the committee conducting that investigation, N.J. Assemblyman John Wisniewski, has not yet been answered.
THE CANCELED MEETINGS
Along with closing toll lanes at the George Washington Bridge to allegedly punish Fort Lee mayor Mark Sokolich for not endorsing Christie’s 2013 re-election, prosecutors point to the summer 2013 cancellation of meetings that had been been scheduled between officials in the Christie Administration and the Port Authority at the request of Jersey City’s Democratic mayor Steve Fulop. Fulop, too had declined to endorse Christie’s re-election. Subsequently, the governor’s office and the Port Authority canceled a series of meetings that had been scheduled with Fulop.
Prosecutors have blamed Baroni and Kelly for the cancellations, drawing a comparison to that event and the subsequent events at the bridge.
But evidence revealed in the defense filings shows that Chris Christie knew and approved of those meeting cancellations because he did not want to upset one of Fulop’s rivals: the Democratic president of New Jersey’s state senate, Steve Sweeney.
According to Baroni’s filing, he was simply acting at the governor’s behest in the interest of good government.
Moreover, according to an email chain that led from Fulop to Christie, David Wildstein and Christie’s re-election campaign manager Bill Stepien seem to have been the primary conduits of political intelligence to the governor rather than Baroni or Kelly. Other Bridgegate emails revealed a similar dynamic, suggesting that Baroni had very few, if any, direct lines of communication with Trenton that did involve Wildstein or Port Authority chairman David Samson as an intermediaries.
THE TWO MEMOS AND THE BIG RED FLAG
Baroni’s filing also reveals that officials representing New York’s interests at the Port Authority conducted a discreet private investigation into Bridgegate and likely communicated their findings to New York Governor Andrew Cuomo.
In late 2013, Port Authority Vice-Chairman Scott Rechler – a New York appointee to the agency’s board – and David Garten, his assistant inside the agency, went outside the agency’s bylaws to run their own informal investigation. After talking with employees and scouring electronic calendars and correspondence, Garten concluded that Wildstein had “bullied, intimidated, and lied” to people involved in the lane closure operation, “perhaps even Baroni.” In a memo with a subheading of “Big Red Flag – Potential Smoking Gun,” Garten identified Wildstein as the lead actor in the lane closures based on emails he found – not Bill Baroni.
Garten also concluded that Baroni’s testimony to the New Jersey legislature about the existence of a traffic study – testimony that has largely been debunked – was at least partly true because the agency had indeed collected traffic data. Baroni was “somewhat correct in his testimony,” Garten wrote.
This piece of evidence is important because one of the charges that prosecutors in the U.S. Attorney’s office leveled against Baroni was that he “provided false and misleading testimony” to New Jersey lawmakers during his appearance. If, however, Baroni’s testimony was judged to be partly true, and misleading primarily because of misdirection and intimidation by Wildstein, it complicates charges in the first count of the indictment against him relating to a conspiracy to defraud the government.
The correspondence from Garten to Rechler also reveals that appointees and staff representing the New York side of the bi-state Port Authority were eager to repair their relationship with Governor Cuomo. It is already well known that Port Authority Executive Director Patrick Foye, a New York appointee, had a strained relationship with Cuomo. The Wall Street Journal reported in December 2013 that Chris Christie reached out to Andrew Cuomo by phone to ask him to restrain Foye’s probe of Bridgegate, and it is widely believed that Cuomo cooperated in doing so.
According to evidence in Baroni’s filing, David Garten suggested to Scott Rechler that Patrick Foye write a memo to the governor explaining their Bridgegate findings. This memo, Garten wrote, would hopefully “build good will between Pat and the governor.”
But it would not be for anyone else’s eyes.
Garten suggested that Foye write the memo from his home computer, print out a single physical copy, and send it to “the second floor” – shorthand for Cuomo’s office on the second floor of the lavishly-detailed state capital building in Albany. He then suggested that Foye write another more bland version, a “general memo,” that would be kept by the agency “in case we get subpoenaed.”
Yes, you read that right. Gartner and the Port Authority vice-chairman agreed in a now-subpoenaed email on a plan to write two memos: one for Cuomo, a former state attorney general, drafted on a home computer to dodge record retention laws and future disclosure to federal prosecutors, and another for the agency’s official files “in case we get subpoenaed.”
Rechler supported this idea and reported that Foye also agreed with the strategy. He wrote that he was going to ask Cuomo aide Howard Glaser (“HG”) for his thoughts on the matter.
The Port Authority today denied that Foye ever followed through with this plan.
THE MISSING CALENDAR AND EMAILS
The bulk of last night’s filings deals with the amount of evidence – or lack thereof – produced by government prosecutors and the firm hired by the Christie Administration to represent it in Bridgegate and other related investigations. That firm, Gibson Dunn, has had a team of white collar criminal defense lawyers led by partner Randy Mastro working under an agreement with the N.J. Attorney General’s office since early 2014.
According to defense lawyers, Mastro’s team has aggressively kept documents from being disclosed and made a mess of what files they have turned over. They have, for example, redacted Christie’s calendar during the August 2013 week that the “time for some traffic problems” email was sent by Bridget Kelly to David Wildstein.
Why? Anybody’s guess.
An un-redacted version of that calendar obtained from another source makes clear that there was no obvious legal basis for Gibson Dunn to withhold its contents. During the week in question, Governor Christie did things like make a phone call to Neil Bush and meet with lobbyist Jeff Michaels, whose brother Thomas ‘Chip’ Michaels, was a Port Authority police lieutenant assigned to the George Washington Bridge in September 2013.
Gibson Dunn has also withheld sixteen emails Baroni and Wildstein exchanged with aides in Christie’s office.
Moreover, they’ve turned over to the government and to defense attorneys a set of documents that are so disorganized that, according to people familiar with the files, they are unlike any professionally collected legal materials they have ever seen. In their current form, defense filings say, Christie’s lawyers have produced material that is simply not usable.
This is not the first time Gibson Dunn has been accused of dumping a seemingly deliberately impenetrable set of records on parties in a case relating to the Port Authority. Baroni and his attorneys note in their filing that in a 2013 New York case where Gibson Dunn represented the agency, a federal magistrate ordered the firm to be more specific after deciding that lawyers had handed over a “deficient” record of privilege assertions. According to Baroni’s filing, Gibson Dunn’s initial privilege log in that case “bears striking similarity” to the one they produced in the Bridgegate case on behalf of Gov. Christie’s office. (The New York case is Automobile Club of New York v. Port Authority, 297 F.R.D. 55, S.D.N.Y. 2013.)
Without ability to force Gibson Dunn to organize the files they’ve turned over on behalf of Governor Christie under a taxpayer-funded contract with the New Jersey state attorney general’s office, Baroni claims he cannot be ready for the trial set to begin in April 2016 after initially being scheduled for this month. “Missing documents, incomplete privilege and redaction logs, spurious privilege assertions, the lack of any action by the prosecution” all affect documents that “go directly to the allegations” against him, Baroni writes.
DID CHRISTIE TESTIFY?
Other outlets have pointed to this part of Baroni’s filing as evidence that Governor Christie testified before the federal grand jury in this case.
But it isn’t confirmation; the defense is simply using boilerplate language to ask for a transcript of a grand jury appearance if it exists, but without knowing for certain whether it does.
We already know that Christie was visited at his official residence by prosecutors and federal agents in 2014. The governor’s office has not yet responded to calls seeking confirmation, and federal rules governing criminal prosecutions make it somewhat tricky for him to do so.
Without such confirmation or a disclosure by prosecutors, we don’t know if Christie has had any subsequent meetings with prosecutors.
Finally, in a passage that is currently redacted pending government review, Baroni’s filing suggests that there exists exculpatory evidence showing that he did not chose September 9, 2013 as the date to start George Washington Bridge lane closings because it was the first day of school in Fort Lee and would therefore cause massive traffic disruptions in town.
For what it’s worth, fingering Baroni as the mastermind behind this calendar choice has never made sense to me. Baroni does not have children and was not living in New Jersey at the time. Why would he be intuitively aware of the logistical nightmares that could be unleashed on that particular day? In fact, why would he know when the first day of school was?
Think about it: unless you’re a teacher or a parent or someone who spends time dreaming up elaborate revenge scenarios involving traffic, how many of you know the calendar of your nearest public schools?
A few final thoughts:
* I’ve always been in an odd position in reporting on this story because of my connections, professional and personal, to the people involved. They’re human beings like us, and we all have the same propensities toward fallibility.
After reading this material, it strikes me that the government’s reliance on David Wildstein as a star witness is going to be a problem. Beyond the missing hard drive – a mind-boggling yet not entirely surprising revelation – my sense is that there’s more to come that will call his credibility into question. The government’s chain of custody for any evidence taken from Baroni’s hard drive will be nearly impossible to establish since Wildstein secretly snuck it out of the Port Authority when it was sought under a state subpoena. Even if that ends up being a non-issue, it still may be hard to convince a jury that the George Washington Bridge lane closures were the sole work of Bill Baroni and Bridget Anne Kelly based on what we are starting to see in these filings.
* Remember David Samson, the former Port Authority chairman and Christie consigliere?
I haven’t written about him in quite awhile because he’s all but disappeared. That does not seem to be an accident, and at this point it is entirely reasonable to assume that Samson is cooperating with prosecutors. Whether that means certain legal trouble for Chris Christie is unclear, but do not forget that a U.S. Attorney appointed by a Democratic president would necessarily be reluctant to publicly move against a Republican governor who is in the midst of a presidential run. Politics can dictate timing.
Christie’s never gonna be president now, but until he's actually out of the race we won't know how much he has to worry about.
Brian Murphy is a TPM contributing editor and Baruch College history professor who writes about the intersection of money and politics. He is the author of Building the Empire State: Political Economy in Early America. He can be reached at email@example.com and you can follow him on Twitter @Burrite.