Kelly: Decision on charging Christie full of pitfalls

Could Chris Christie face criminal charges in the Bridgegate scandal?

Should he?

Two years ago, after the governor forcefully condemned the traffic-as-political-payback scheme, and a state-commissioned report by a law firm cleared him of any wrongdoing in the matter, such questions seemed like weird pipe dreams circulated only by Christie’s most strident foes.

Now those questions have new life.

BRIDGEGATE: Two former associates of Christie convicted

MIKE KELLY: The man who wants to send Christie to jail

DENIED: Judge rejects bid for special prosecutor in Christie case

The Bergen County Prosecutor's Office is assessing the merits of a criminal complaint against the governor, filed by longtime activist, legal gadfly and former Teaneck firefighter William Brennan. But prosecutors also face a nettlesome legal and political dilemma as they weigh the evidence of Brennan’s complaint that the governor violated the state official-misconduct statute by not responding to reports of dangerous traffic gridlock in Fort Lee over five days in September 2013.

If prosecutors conclude among themselves that Brennan’s complaint lacks merit and dismiss it “administratively” – as often happens with court actions filed by ordinary civilians – they will likely face a swarm of politically charged questions about whether they took time to thoroughly investigate the claim.

Adding to the intrigue is the fact that Bergen County Prosecutor Gurbir S. Grewal recused himself from the case, citing his personal ties to Christie when the two worked together in the U.S. Attorney's Office in Newark.

The case now falls to his subordinate, First Assistant Prosecutor John Higgins III. Although he is widely seen as a no-nonsense prosecutor, Higgins faces the monumental task of weighing evidence against his boss's former colleague, while remaining transparent to a public that increasingly sees Christie as culpable in Bridgegate.

Legal experts say Higgins could follow the same path as many prosecutors around the nation in high-profile criminal cases by presenting the evidence to a grand jury – allowing 23 grand jurors to vote whether to indict Christie. But that option carries its own pitfalls.

With Christie’s approval rating sinking to a dismal 18 percent and last week’s Fairleigh Dickinson PublicMind poll showing that 71 percent of New Jersey’s registered voters feel the governor should have been indicted in the federal Bridgegate case, can any grand jury in New Jersey be trusted to rule fairly?

State Sen. Raymond Lesniak, a democrat from Union County, said any action by the Bergen County Prosecutor's Office that “doesn’t pass the smell test ... will undermine the public’s confidence in our judicial system.”

Lesniak, a possible candidate for governor, is a prime sponsor of legislation for a special prosecutor in the Bridgegate case. Brennan, of Wayne, the source of the criminal complaint against Christie and also a candidate for governor, recently had his bid for a special prosecutor in the case shot down by a judge.

Meanwhile, legal experts say it will be difficult to untangle the volatile mix of politics and law that frames the Bridgegate case no matter what direction the investigation takes.

The state’s former public advocate, Ronald K. Chen, who is now co-dean of Rutgers Law School, said the case offers a daunting problem for prosecutors.

“This is a bit like the prosecutor being between a rock and a hard place,” Chen said. “The normal tools that a prosecutor has are just not available in this case."

For instance, Chen said, Bergen County investigators might face major problems if they merely try to question Christie’s aides – a normal step in any criminal case but one that could cause constitutional problems because the case involves the governor and his staff.

“Do detectives just show up at the State House and start asking questions?” Chen asked.

Another concern, Chen said, is whether Bergen’s prosecutors would be duplicating efforts by the FBI and federal prosecutors who took over the Bridgegate case in 2014.

U.S. Attorney Paul Fishman has repeatedly said his office could not find enough evidence to mount a criminal case against Christie or others on his staff. But Fishman’s investigators nonetheless compiled a list of the governor’s allies who knew about the Bridgegate plot but may not have been criminally culpable.

It’s not known whether Christie’s name is on the list. Fishman has steadfastly refused to make the list public, despite court motions by a variety of media outlets, including The Record.

Probe halted

Former Bergen County Prosecutor John Molinelli said he attempted to mount his own investigation of the Bridgegate plot soon after The Record published emails in January 2014 that indicated several of Christie’s allies knew about the lane closures. In a series of recent interviews, Molinelli, who is now in private practice, disclosed that he was “ready to go” with a staff of detectives to investigate.

He said he believed the lane closure plot was a “clear case of official misconduct” by a variety of officials in Christie’s office and at the Port Authority, including the three former gubernatorial allies guilty in the case: Christie’s former deputy chief of staff, Bridget Anne Kelly, and Port Authority officials Bill Baroni and David Wildstein. Kelly and Baroni were each convicted of seven charges in the federal Bridgegate trial last month and are scheduled to be sentenced in February. Wildstein pleaded guilty and testified against them. No sentencing date has been set for him yet.

Molinelli said he did not necessarily view Christie as a possible suspect in January 2014. “The governor was not on my radar,” Molinelli said. “All we had at the time was Wildstein, Baroni and Kelly.”

But Molinelli’s office never took on the case.

On the same day The Record published emails linking Wildstein, Baroni and Kelly to the lane closures, Molinelli said he was ordered by the state Attorney General's Office to back off any investigation he was planning. The next day, at 6:30 a.m., Molinelli said, he received a phone phone call from Fishman, who also ordered him to stop any investigation because federal prosecutors were taking the case.

Spokesmen for both the state attorney general and for Fishman declined to comment on why Molinelli was pushed off the case. A spokeswoman for the Bergen County Prosecutor's Office also declined to respond to several requests for comment about the new investigation and its implications.

The revelation by Molinelli that he saw the lane closures as a possible case of official misconduct mirrors the thinking behind the criminal complaint by Bill Brennan. Adding irony is the fact that Brennan has been a major critic of Molinelli in the past.

No matter how this case proceeds, however, a variety of defense attorneys and former prosecutors say Christie's guilt is far from easy to prove.

“I’m not an apologist for Christie, but fair is fair,” said veteran defense attorney Joseph A. Hayden Jr., who was a Democratic delegate for presidential nominee Hillary Clinton.

Hayden said he doubts whether the case can be proved at trial.

“There was not enough evidence to indict Christie in a federal case,” Hayden said. “I don’t see enough evidence here for a state case. When you’re talking about a sitting governor, whatever you may think of him, you should only indict if you have the evidence, not because you don’t like him.”

Another longtime defense attorney and former prosecutor, Robert Galantucci, who is best known for successfully defending several local police officers in racially charged shootings, said the Bergen County Prosecutors Office faces a “very tough call”  because of lingering questions about conflicts of interest.

Galantucci, a Republican, said he feels that Christie knew of the lane closure plot, but he’s not sure enough evidence exists to indict the governor.

In early January, an attorney for Christie is scheduled to ask a Bergen County judge to dismiss the criminal complaint against the governor.  As if there are not enough strange twists in this story, that hearing may take place as Bergen County prosecutors are privately weighing evidence against Christie.

“It’s a mess,” Galantucci said.

That may be an understatement.