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Monday, January 12, 2015

Explaining Christie's Run

No suspense here. Chris Christie is running for the 2016 Republican presidential nomination.

The cherry on top of the cake, so to speak, may have been the impending hire of Texas power broker Ray Washburne as his campaign finance chair, hinted at strongly in this report

Some will stop and say, "Wait! Weren't federal prosecutors closing in on Christie?" based on last week's report that Christie had a sit-down with prosecutors in December. 


And note the language in that ABC News report. Specifically, this:
He agreed to sit down with investigators voluntarily after they offered him a chance to provide his side of the story.
Assuming that the wording was borrowing the description, from an unnamed source, with both knowledge of the facts and knowledge of the legal background behind the events, the choice of words supports a few inferences.

First, "he agreed" means the meeting was sought by prosecutors. Not Christie.

That means prosecutors wanted something. It could be verification of information given by another (i.e. corroboration), it could be looking for something to dispel a theory, or it could be a direct inquiry at a high-profile potential "target," that is, Christie himself. But the feds were the ones starting this process, not the Governor.

Second, he met "voluntarily." View this through the prism: There's an easy way, and a hard way. This means the feds requested and he agreed to meet. There was, perhaps, no subpoena, but rest assured, failure to meet voluntarily is not so voluntary when refusal means you might be compelled to meet, either via subpoena or via arrest. 

Consider the guidelines from the United States Attorneys' Manual, which provides in relevant part:
A grand jury may properly subpoena a subject or a target of the investigation and question the target about his or her involvement in the crime under investigation. See United States v. Wong, 431 U.S. 174, 179 n. 8 (1977);United States v. Washington, 431 U.S. 181, 190 n. 6 (1977); United States v. Mandujano, 425 U.S. 564, 573-75 and 584 n. 9 (1976); United States v. Dionisio, 410 U.S. 1, 10 n. 8 (1973). However, in the context of particular cases such a subpoena may carry the appearance of unfairness. Because the potential for misunderstanding is great, before a known "target" (as defined in USAM 9-11.151) is subpoenaed to testify before the grand jury about his or her involvement in the crime under investigation, an effort should be made to secure the target's voluntary appearance. If a voluntary appearance cannot be obtained, the target should be subpoenaed only after the grand jury and the United States Attorney or the responsible Assistant Attorney General have approved the subpoena. In determining whether to approve a subpoena for a "target," careful attention will be paid to the following considerations:
  • The importance to the successful conduct of the grand jury's investigation of the testimony or other information sought;
  • Whether the substance of the testimony or other information sought could be provided by other witnesses; and
  • Whether the questions the prosecutor and the grand jurors intend to ask or the other information sought would be protected by a valid claim of privilege. (United States Attorneys' Manual Chapter 9-11.150) (Emphasis added)

Third, they "offered him a chance to provide his side of the story." This is really important. This means that the prosecutors have come up with a theory, a likely version of events plus a legal underpinning of a potential charge, and they believe this theory is likely at odds with what they believed Christie would say. (The basis for that expectation comes from the ample public comments Christie himself made, surprising comments based on his own prosecutorial experience and perhaps evidencing an unfathomable hubris.) 

But most of all, the last phrase means that prosecutors have decided on a course of action -- if not directly involving Christie, then involving others near him -- and that course of action will be taken, whether Christie cooperates in the effort or not.

So how do prosecutors view Christie? The United States Attorney, Paul Fishman, is not saying. (Nor should he. That's the professional course to take.) Here are how some key terms are defined in the United States Attorneys' Manual, Chapter 9-11.151.
A "target" is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. 
But here are some pointers.

When you are a witness or potential target, you are technically offered the chance to meet prosecutors. But this is not Hollywood. It's really more of a choice: easy way, or hard way. Consider the United States Attorneys' Manual, which provides:
It is not altogether uncommon for subjects or targets of the grand jury's investigation, particularly in white-collar cases, to request or demand the opportunity to tell the grand jury their side of the story. While the prosecutor has no legal obligation to permit such witnesses to testify, United States v. Leverage Funding System, Inc., 637 F.2d 645 (9th Cir. 1980), cert. denied, 452 U.S. 961 (1981); United States v. Gardner, 516 F.2d 334 (7th Cir. 1975), cert. denied, 423 U.S. 861 (1976)), a refusal to do so can create the appearance of unfairness. Accordingly, under normal circumstances, where no burden upon the grand jury or delay of its proceedings is involved, reasonable requests by a "subject" or "target" of an investigation, as defined above, to testify personally before the grand jury ordinarily should be given favorable consideration, provided that such witness explicitly waives his or her privilege against self-incrimination, on the record before the grand jury, and is represented by counsel or voluntarily and knowingly appears without counsel and consents to full examination under oath. 
(United States Attorneys' Manual Chapter 9-11.152)(Emphasis added.)
And furthermore:
When a target is not called to testify pursuant to USAM 9-11.150, and does not request to testify on his or her own motion (see USAM 9-11.152), the prosecutor, in appropriate cases, is encouraged to notify such person a reasonable time before seeking an indictment in order to afford him or her an opportunity to testify before the grand jury, subject to the conditions set forth in USAM 9-11.152. (Emphasis added.)(U.S. Attorneys' Manual Chapter 9-11.153).
Now consider the ABC News report referenced above, which, if accurate, reported that prosecutors were considering subpoenaing Christie if he did not respond to their request to meet.

And no matter how you are viewed -- fact witness, character witness, impeachment witness, or potential defendant (i.e., a target) -- any question and answer session puts you at risk of a false statements charge if your statements to federal prosecutors or investigators are later considered false. 

That's not necessarily fatal. Others have taken the risk and survived; see former Governor Jon Corzine as an example of someone who played with fire and lived to tell about it -- although he is theoretically still at risk of federal prosecution until the statute of limitations expires on him probably in early 2017.

But it would still have been smart for Christie to have insisted on a videotaped question and answer session, especially since the FBI adopted new regulations in May 2014 requiring the videotaping of most suspects. That's quite a change from the FBI regulations in place when Chris Christie was the United States Attorney himself and his office backed away from questioning someone because he insisted on a videotape. 

From the Manual's guidance, it certainly seems like Governor Christie's conduct may be at least that of a "subject," a term defined as a "person whose conduct is within the scope of the grand jury's investigation." (United States Attorney's Manual Chapter 9-11.151.) It is possible he is a "target," as defined earlier.

But indictments are not fatal to political hopes.

One thing is certain. There can be no assurance that the investigation would end without action, or with an "all clear" for Christie prior to the point where he would have to lay the serious foundation (i.e. fundraise) for a presidential campaign. Hence, he has little choice, strategically, but to go full steam ahead. However, the foregoing discussion should explain why a campaign is not indicative of his ultimate legal exposure in the myriad of federal investigations still believed to be ongoing. 

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