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Sunday, January 19, 2014

Lawyering Up Not A Sign Of Guilt

Most if not all of Governor Chris Christie's inner circle has lawyered up (hired lawyers) to respond to last week's wave of legislative subpoenas investigating the scandal known as Bridgegate.  Sunday morning (January 19th), the Star-Ledger of Newark reported that former New Jersey Attorney General and current Port Authority chairman David Samson has hired Michael Chertoff, the former U.S. Attorney in New Jersey (a Christie predecessor) and former Homeland Security director, to represent him.

Some commentators and activists are gleeful with each report that a lawyer has been retained.  It is argued that hiring a lawyer is a sign that there is something to hide, and hence some wrongdoing (if not criminality) that, in this case, warrants either the emasculation of Christie's presidential ambitions (without which very few would care one bit about Bridgegate), his resignation (which as I've explained is more likely if Christie gets exasperated more than implicated) or even his indictment and eventual imprisonment.
This is not warranted.  Not even in light of more developments.

(Update 1/19/14 9pm: Hoboken Mayor Dawn Zimmer now claims that she met with federal prosecutors for several hours earlier today to discuss her rather explosive allegations that Christie Administration officials pressured her to support a real estate development as a quid pro quo for state funding in the aftermath of Hurricane Sandy flooding damage.)

Now that it is likely that there are multiple criminal inquiries into Christie Administration and/or the Port Authority of New York and New Jersey, with the precise subject matter yet to be revealed, it is uncertain where many people working in any of those orbits will fall in terms of any provable role in any wrongdoing.
It is highly prudent to hire a lawyer when you are involved in any investigation.  This is particularly true when you are in fact innocent. It is also particularly appropriate when the investigation has partisan overtones which support an inference that the investigation is more about the desired outcome than uncovering the truth and any possible crime.

And remember one thing: You don't need to have done anything wrong to be "involved" in an investigation. In fact, your factual innocence may put you at greater risk.  The reason is simple: You are within the orbit of people who have done something wrong, and who may need to blame others in order to build a case for leniency from prosecutors whose support is crucial in convincing a sentencing judge to go easy on any sentence for the crimes to which they admit. Therefore, being innocent is no protection, none at all, from a false yet plausible accusation made by someone desperate to reduce or avoid all jail time. And prosecutors get fooled more than you might think (but won't admit it) by con artists who have been manipulating people all their lives.
If you are guilty, you can always pull the safety valve by confessing. Of course there are adverse consequences such as a likely jail sentence, but it would stop the circling of predators in a sense. While I do not jump to conclusions about David Wildstein, it is worth noting that Wildstein's lawyer has publicly announced through the press that his client, who asserted his rights against self-incrimination in testimony before the New Jersey State Assembly Transportation Committee recently, is willing to testify if he is granted immunity by federal and state prosecutors. At a minimum, it supports the conjecture that these are the actions of someone eager to get the dogs called off. Furthermore, asking for immunity does imply that you have done something for which you may want or need immunity from prosecution, but it also is a smart move by a lawyer who will take no chances that his client might get prosecuted in a politically charged environment where a fair, impartial trial is not assured as a practical matter.
If you are innocent and have no option but to be very wary of any inquiry, the highest caution is warranted. That is because an inquiry shaped by overzealous inquisitors will focus on getting people held accountable -- no matter whether that is justified by the facts or even if the right people are held accountable.  That zeal will lead in many instances to a temptation to patch together circumstantial evidence, double hearsay and unreliable information from unreliable sources (they may be good enough for investigators but often will never see the witness chair at a trial or legislative hearing).
Without a lawyer serving as a barrier between the target and the investigation, there is a real risk of an investigation going off the tracks in its search for "answers." (Note the use of quotes.) Skilled counsel can redirect an investigation, not just to deflect blame but also to uncover additional facts which can exculpate a client but also lead to the truth (i.e., who really did it).
Hiring an attorney means the person being targeted is taking the investigation seriously.  In the case of Bridgegate, where political overzealousness may need to be restrained (as in any political investigation), such caution is virtually required.
Exercising caution when one's freedom is being targeted is hardly a sign of guilt.  The total "big picture" of loads of people lawyering up suggests there was wrongdoing somewhere, but the individual roles have yet to be determined and the likelihood is that only a small percentage of people in the vicinity of the scandal will actually have been culpable.  Sadly, reputations of people, who will likely be ultimately cleared, get tarnished in investigations and Bridgegate, featuring a likely presidential candidate and thus justifying heavy press coverage, will be no exception to this rule.


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