More From Eric Dixon at http://www.NYBusinessCounsel.com

Twitter Rank #35 For Startup Advice May 2014 (#44 June 2014, #50 July 2014 -- now TRENDING UP at #41 for August 2014). Go to my professional site for solutions to your legal, business and strategic problems. Bitcoin Protocol Development -- Among the World's Legal Leaders in New Bitcoin Technology -- Top Strategic Judgment -- When You Need A Fixer -- Explore Information Protection and Cryptographic Security -- MUST-WIN: JUST DON'T LOSE -- SURVIVE!: Under Investigation? Being Sued? Handling Extreme Stress -- Corporate Issues -- Startup Issues -- Investor Issues -- Contracts To Meet Your Needs -- Opposition Research -- Trademark, Patent, Copyright -- Media and Reputation Issues -- Independent, top-notch legal, strategic and personal advice -- Extensive ghostwriting, speechwriting, book writing, issue research, press and crisis management services. Listed among the American Bar Association's Law Bloggers (Blawgers). Contact EDixon@NYBusinessCounsel.com 917-696-2442.

Friday, March 28, 2014

Bridgegate Report: A Legal Analysis

This brief article summarizes some points on the purpose and role of reports such as the report summarizing findings of the internal investigation by the Gibson Dunn law firm on the Bridgegate / Sandy federal aid to Hoboken controversies for the Office of the Governor of New Jersey, which was released Thursday.

(Note: Analysis of this huge document and its exhibits is ongoing. Inquiries should be made directly to the author at EDixon@NYBusinessCounsel.com.)

First, the document is produced on behalf of an entity. The Office of the Governor. Not Chris Christie the individual, nor Governor Chris Christie.  The client is the "Office."

Why is this important? It is not to clarify who the "client" is - as some have already speculated the real client is the individual Governor. (By the way, the conflicts inherent in the various representations of the players in this entire controversy are discussed in detail in my January 17th article.)

No, the real reason is to guard against the real, if small, risk that the report could be evidence of an attempt at obstruction of justice. That is a felony.

If the report has any material misstatement or intentional falsehood, and it is given to federal prosecutors, the argument can be made that the authors - or any source identified in the report (and there are over 1,400 footnotes) - were trying to mislead federal agents investigating the matter.

Second, the report is (for the reason explained above) written in a defensive tone. That is why the effort to source its statements is so evident. Note that this objective is not "finding the truth." The real purpose of this report is to show some effort by the entity, the Office, that it tried to be accountable and will consider reforms of its operations.  The purpose, therefore, is not to find the truth as much as it is to show they made a good effort and cannot be faulted.

After all, the report -- and the law firm Gibson, Dunn's role -- is meant to advocate, not to be the objective finder of facts.

Third, the report disappoints by relying too heavily on outside press reports when it had access to insiders. The mechanics of government operations should be explained and attested to by officials. This was not done, such as in the case of the section explaining the workings of the Office of Intergovernmental Affairs. Press reports should not be the source; there should be a government official who can certify this is how things work or at least were intended to work.

The absence of such certifications gives off two messages. The first message is that people want wiggle room, that there are legal concerns. When the question or issue is so benign, that has to be interpreted as a sign of trouble.  The second message is the most logical inference to draw from my fourth major conclusion from the report.

This fourth conclusion, which draws on more than an isolated instance but really identifies a trend, is that the report is full of unsubstantiated, undocumented and ultimately unverifiable factual statements, assertions and assumptions. 

There are 1,414 footnotes and 610 exhibits. At first glance the report appears to be professionally and thoroughly sourced.  Until you examine the report.  Many of the footnotes, upon close examination, bear little or no relevance to the sentence or phrase which they purportedly support. More troubling is the tendency of the report to make assertions, cite a footnote to create the appearance of a factual basis, and then have a footnote with no relevance to the assertion one looks to verify.  The magnitude of the exhibits and footnotes appears to be a "shock and awe" strategy -- until you actually start digging. That's when you see the report has a smoke-and-mirrors feel -- and for $650 an hour for junior know-nothing lawyers the New Jersey taxpayers getting fleeced on this should be mighty angry.


Consider page 51 of the report which cites Fort Lee's mayor as being on a list of 21 Democratic mayors whose endorsement was sought by Governor Christie's reelection campaign. You would think (hope) that the list itself would be an exhibit. Why else would the law firm Gibson Dunn make the statement? If there is no list, there is no basis for the statement. But the list is nowhere to be found. And there are other -- there are many -- instances of allegations, presented as facts, but without any substantiation, none at all.. 


One such example is early in the report on pages 7-8 discussing David Wildstein's alleged actions as the bridge controversy emerged.  Consider the following passage:

"By early December 2013, Wildstein was feeling vulnerable, knew he would have to resign, and then did.75 While he continued to insist to the Governor’s Office that this was a legitimate traffic study, even if flawed in its execution, and admitted that this was his “idea,” he tried to deflect blame, telling Drewniak that he had not acted alone, identifying Kelly and Stepien as others who knew, and claiming he had emails to prove it. Wildstein even suggested he mentioned the traffic issue in Fort Lee to the Governor at a public event during the lane realignment—a reference that the Governor does not recall and, even if actually made, would not have registered with the Governor in any event because he knew nothing about this decision in advance and would not have considered another traffic issue at one of the bridges or tunnels to be memorable. Drewniak passed on Wildstein’s claims to others in the Governor’s Office. Others also heard the Kelly email rumors and reported them back to the Governor’s Office around that time.

How many facts in this passage are backed up with a source? Exactly one, that being the fact of Wildstein's resignation. And consider the cited source for Wildstein's resignation is not even the original document, the Wildstein resignation letter which should be in the possession of the Governor's Office.  The source is a third-party news article (Footnote 75 cites only the article in the Record of Hackensack, available at northjersey.com, reporting the resignation).  This illustrates another major deficiency in the entire report: its reliance on news reports for sourcing of elementary facts.

How many discreet facts are not backed up by any source? I count 14. At least 14. And with full access to the Office of the Governor, there is no excuse for this total lack of sourcing.  Unless there is a reason.

An internal investigation like this one, representing itself to be thorough, should have had access to core, major "primary source" documents. The fact that news reports are the primary sources suggests that either the investigative team at Gibson Dunn did not have the full access claimed, or -- and this is much more likely -- the Office of the Governor and its lawyers consciously and intentionally withheld those primary sources, whether they be documents or witness statements.

And from this last theory, one can -- actually, it's hard not to -- infer that there is something in withheld documents or statements, withheld evidence in any case, which is either seriously politically damaging, personally embarrassing, or evidence of potential criminality.

As Nucky Johnson explained on "Boardwalk Empire" once, "You're too smart to be that dumb." There is a reason the thick report is opaque on simple matters. But remember the report's very purpose is to make a show out of trying to be transparent and accountable.

Even when the real purpose is the exact opposite.

No comments:

Post a Comment