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SUPERIOR COURT OF NEW JERSEY

LAW DIVISION: MERCER COUNTY

No. MER-L-354-14

THE NEW JERSEY LEGISLATIVE SELECT

COMMITTEE ON INVESTIGATION,

Plaintiff,

v.

WILLIAM STEPIEN,

Defendant.

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DEFENDANTS MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS MOTION TO ENFORCE ITS SUBPOENA DATED JANUARY 27, 2014

MARINO, TORTORELLA & BOYLE, P.C.

437 Southern Boulevard

Chatham, New Jersey 07928-1488

(973) 824-9300

Attorneys for Defendant William Stepien

On the Brief:

Kevin H. Marino

John D. Tortorella

Erez Davy

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 5

A. The Transportation Committees Investigation Into The Lane Closures And Chairman Wisniewskis Mischaracterization Of Mr. Stepiens Involvement In Those Lane Closures. ............................................................................................. 5

B. Formation Of The New Jersey Select Legislative Committee And Its Wide-Ranging Investigation Into Perceived Abuses of Government Power. ....................... 9

C. The Parallel Federal Investigations. .......................................................................... 13

D. The Governor Severs Ties With Mr. Stepien And The Committee Insists

That He Comply With A Subpoena That Is Unconstitutional On Its Face. .............. 14

1. The Governors Immediate Severance Of Ties With Mr. Stepien Upon Publication Of The Twenty-Two Pages Of Documents On January 8,

2014. ...................................................................................................................14

2. The Federal Investigation Of Mr. Stepien. ........................................................15

3. The Subpoena To Mr. Stepien. ..........................................................................16

4. Mr. Stepiens Detailed Objections to the Subpoena and the Committees Refusal to Withdraw It. ......................................................................................17

LEGAL ARGUMENT .................................................................................................................. 19

I. THE SUBPOENA VIOLATES MR. STEPIENS RIGHT NOT TO INCRIMINATE HIMSELF. ............................................................................................. 19

A. The Principles Underlying The Fifth Amendment And Its Protection Of The Innocent And Guilty Alike. ....................................................................................... 19

B. The Subpoena Violates The Extensive Protections Afforded By the Act-of-Production Doctrine. ................................................................................................. 28

1. The Committee Misreads Hubbell. ....................................................................29

2. The Hazards of Incrimination Are Not Trifling or Imaginary. ...................32

3. The Committee Cannot Identify, Locate, and Authenticate the Documents It Demands Without Mr. Stepiens Assistance. ..............................39

4. Refusing To Enforce The Subpoena Will Not Increase The Likelihood Of An Attack On Our Nation. ............................................................................45

II. THE SUBPOENA COMPELS MR. STEPIEN TO PRODUCE PRIVATE INFORMATION IN VIOLATION OF NEW JERSEYS COMMON-LAW PRIVILEGE AGAINST SELF-INCRIMINATION......................................................... 49

A. New Jerseys Common-Law Privilege Against Self-Incrimination Affords Even Greater Protections Than The Act-Of-Production Doctrine. ........................... 49

ii

B. The Subpoena Demands Information In Violation Of New Jerseys Broader Privilege Against Self-Incrimination. ....................................................................... 50

III. THE COURT SHOULD NOT COMPEL MR. STEPIEN TO RESPOND TO SUBPOENA REQUEST NOS. 6 AND 7 BECAUSE THEY VIOLATE THE

FEDERAL AND STATE CONSTITUTIONAL BAN ON UNREASONABLE SEARCHES AND SEIZURES. ...................................................................................... 58

CONCLUSION ............................................................................................................................. 59

iii

TABLE OF AUTHORITIES

Cases

Bear Sterns & Co. v. Wyler,

182 F. Supp. 2d 679 (N.D. Ill. 2002) ........................................................................................ 36

Blau v. United States,

340 U.S. 159 (1950) .................................................................................................................. 30

Boyd v. United States,

116 U.S. 616 (1886) ........................................................................................................... passim

Carter v. Kentucky,

450 U.S. 288 (1981) .................................................................................................................. 19

Doe v. United States,

383 F.3d 905 (9th Cir. 2004) .................................................................................. 23, 41, 44, 45

Doe v. United States,

487 U.S. 201 (1988) .................................................................................................................. 29

Entick v. Carrington,

95 Eng. Rep. 807 (C. P. 1765) .................................................................................................. 21

Fisher v. United States,

425 U.S. 391 (1976) ........................................................................................................... passim

Greenbaum v. United States,

280 F. 474 (6th Cir. 1922) ........................................................................................................ 21

Guest v. Leis,

255 F.3d 325 (6th Cir. 2001) .............................................................................................. 55, 56

Hoffman v.United States,

341 U.S. 479 (1951) ...................................................................................................... 30, 33, 47

In re Addonizio,

53 N.J. 107 (1968) .................................................................................................................... 49

In re Corrugated Container Antitrust Litig.,

620 F.2d 1086 (5th Cir. 1980) .................................................................................................. 39

In re Corrugated Container Antitrust Litig.,

662 F.2d 875 (D.C. Cir. 1981) ............................................................................................ 32, 33

In re Grand Jury Empaneled on April 6, 1993,

869 F. Supp. 298 (D.N.J. 1994) .......................................................................................... 30, 47

In re Grand Jury Proceedings of Guarino,

104 N.J. 218 (1986) ............................................................................................................ 50, 57

In re Grand Jury Subpoena Dated February 2, 2012,

__ F.3d __, No. 13-403-cv, 2013 U.S. App. LEXIS 25316 (2d Cir. Dec. 19, 2013) ......... 27, 29

In re Grand Jury Subpoena Duces Tecum,

466 F. Supp. 325 (S.D.N.Y. 1979) ..................................................................................... 28, 44

iv

In re Grand Jury Subpoena Duces Tecum,

670 F.3d 1335 (11th Cir. 2012) .......................................................................................... 28, 47

In re Grand Jury Subpoena,

383 F.3d 905 (9th Cir. 2004) .................................................................................................... 28

In re McVane,

44 F.3d 1127 (2d Cir. 1995) ..................................................................................................... 58

In re Shain,

92 N.J. 524 (1983) .................................................................................................................... 48

Kastigar v. United States,

406 U.S. 441 (1972) ............................................................................................................ 38, 47

Katz v. United States,

389 U.S. 347 (1967) .................................................................................................................. 54

Marchetti v. United States,

390 U.S. 39 (1968) .............................................................................................................. 32, 34

McGrain v. Daugherty,

273 U.S. 135 (1927) .................................................................................................................. 48

Moore v. Gilead Sciences., Inc.,

No. 07-cv-3850, 2011 U.S. Dist. LEXIS 132408 (N.D. Cal. Nov. 16, 2011) .......................... 36

Morss v. Forbes,

24 N.J. 341 (1957) .................................................................................................................... 48

Murphy v. Waterfront Commn of New York Harbor, 378 U.S. 52 (1964) .................................................................................................................... 20

Nelson v. Pilkington PLC,

385 F.3d 350 (3d Cir. 2004) ..................................................................................................... 32

Ohio v. Reiner,

532 U.S. 17 (2001) .................................................................................................................... 19

Quinn v. United States,

349 U.S. 155 (1955) .................................................................................................................. 20

R.S. v. Minnewaska Area Sch. Dist. No. 2149,

894 F. Supp. 2d 1128 (D. Minn. 2012) ..................................................................................... 56

S.D. Farm Bureau v. Hazeltine,

202 F. Supp. 2d 1020 (D.S.D. 2002) ........................................................................................ 48

See v. Seattle,

387 U.S. 541 (1967) .................................................................................................................. 58

Smith v. Maryland,

442 U.S. 735 (1979) .................................................................................................................. 53

Spring Valley Water-Works v. Bartlett,

16 F. 615 (C.C.D. Cal. 1883) .................................................................................................... 48

v

State v. DeFranco,

426 N.J. Super. 240 (App. Div. 2012) ...................................................................................... 55

State v. Earls,

214 N.J. 564 (2013) .................................................................................................................. 53

State v. Hartley,

103 N.J. 252 (1986) .................................................................................................................. 49

State v. Hunt,

91 N.J. 338 (1982) .............................................................................................................. 52, 53

State v. McAllister,

184 N.J. 17 (2005) .................................................................................................................... 54

State v. Muhammad,

182 N.J. 551 (2005) ............................................................................................................ 49, 58

State v. Reid,

194 N.J. 386 (2008) ............................................................................................................ 54, 55

State v. Strong,

110 N.J. 583 (1988) ...................................................................................................... 49, 50, 58

Stengart v. Loving Care Agency, Inc.,

201 N.J. 300 (2010) .................................................................................................................. 54

United States v. Allshouse,

622 F.2d 53 (3d Cir. 1980) ....................................................................................................... 37

United States v. Apfelbaum,

445 U.S. 115 (1980) .................................................................................................................. 32

United States v. Bright,

596 F.3d 683 (9th Cir. 2010) .............................................................................................. 37, 41

United States v. Burgard,

No. 10-cr-30085, 2011 U.S. Dist. LEXIS 9893 (S.D. Ill. Feb. 2, 2011) .................................. 56

United States v. Cioffi,

668 F. Supp. 2d 385 (E.D.N.Y. 2009) ...................................................................................... 56

United States v. Doe,

465 U.S. 605 (1984) ................................................................................................ 24, 25, 27, 29

United States v. Edelson,

604 F.2d 232 (3d Cir. 1979) ..................................................................................................... 36

United States v. Forrester,

512 F.3d 500 (9th Cir. 2008) .................................................................................................... 56

United States v. Grable,

98 F.3d 251 (6th Cir. 1996) ...................................................................................................... 33

United States v. Hubbell,

530 U.S. 27 (2000) ............................................................................................................. passim

vi

United States v. Jones,

132 S. Ct. 945 (2012) .......................................................................................................... 53, 54

United States v. King,

55 F.3d 1193 (6th Cir. 1995) .................................................................................................... 56

United States v. Lifshitz,

369 F.3d 173 (2d Cir. 2004) ............................................................................................... 55, 56

United States v. Marra,

No. 05-cv-2509, 2005 U.S. Dist. LEXIS 23411 (D.N.J. 2005) ................................................ 37

United States v. Ponds,

454 F.3d 313 (D.C. Cir. 2006) ...................................................................................... 28, 31, 42

United States v. Raniere,

895 F. Supp. 699 (D.N.J. 1995) .......................................................................................... 32, 35

United States v. Scala,

432 F. Supp. 2d 403 (S.D.N.Y. 2006) ...................................................................................... 19

United States v. Sharp,

920 F.2d 1167 (4th Cir. 1990) .................................................................................................. 39

United States v. Warshak,

631 F.3d 266 (6th Cir. 2010) .................................................................................................... 55

United States v. Zavala,

541 F.3d 562 (5th Cir. 2008) .................................................................................................... 55

Wagner v. Lehman Bros. Kuhn Loeb, Inc.,

646 F. Supp. 643 (N.D. Ill. 1986) ............................................................................................. 39

Washington v. Hinton,

No. 87663-1, 2014 Wash. LEXIS 159 (Wash. Sup. Ct. Feb. 27, 2014) ................................... 54

Whirlpool Properties, Inc. v. Director, Div. of Taxation,

208 N.J. 141 (2011) .................................................................................................................. 48

Zicarelli v. New Jersey State Commn of Investigation, 406 U.S. 472 (1972) ............................................................................................................ 33, 34

Statutes

N.J.S.A. 52:13-1................................................................................................................... 48, 49

N.J.S.A. 52:13-13....................................................................................................................... 48

Journals & Treatises

Lance Cole, The Fifth Amendment and Compelled Production of Personal Documents After

United States v. Hubbell TA \s "Hubbell" New Protection for Private Papers?, 29 Am. J. Crim. L. 123 (2002) .................................................................................................. 27

Richard A. Nagareda, Compulsion To Be A Witness and the Resurrection of Boyd, 74 N.Y.U. L. Rev. 1575 (1999) .................................................................................... 22, 46, 50

vii

Samuel J. Alito, Jr., Documents and the Privilege Against Self-Incrimination,

48 U. Pitt. L. Rev. 27 (1986) .............................................................................................. 22, 46

William J. Stuntz, Self-Incrimination and Excuse,

88 Colum. L. Rev. 1227 (1988) ................................................................................................ 26

Constitutional Provisions

N.J. Const. art. I, 7 ..................................................................................................................... 52

U.S. Const. amend. IV ........................................................................................................... passim

U.S. Const. amend. V............................................................................................................. passim

U.S. Const. art. VI ......................................................................................................................... 48

1

PRELIMINARY STATEMENT

Defendant, William Stepien, respectfully submits this memorandum of law and the

accompanying Certification of Kevin H. Marino (Marino Certification) in opposition to the

motion of the New Jersey Legislative Select Committee on Investigation (the Committee) to

enforce its subpoena to Mr. Stepien dated January 27, 2014 (the Subpoena).1

Mr. Stepien enjoys a constitutional and common law right not to incriminate himself.

That right is well understood to protect all persons including innocent men who might

otherwise be ensnared by ambiguous circumstances from compulsory acts of production

that (a) are testimonial; and (b) might furnish a link in the chain of evidence needed to convict

them. An act of production is itself testimonial (and thus self-incriminating) when it signals and

concedes the existence, location, and authenticity of documents and things that might furnish

such an evidentiary link. By providing the subpoenaed materials, a party facing the possibility of

criminal prosecution effectively testifies that those items exist, are in his possession, and are

what they purport to be. His act of production thus entails the communication of the thought

process by which he decided what to produce: he has processed the subpoenas description of

the items sought and, by producing them, has become not a passive source of information but a

witness testifying against himself. Thus, compelling a testimonial act of production by a person

in the throes of a criminal investigation and that, against all odds, is precisely where Mr.

Stepien finds himself undoubtedly violates that persons right against self-incrimination.

Here, the Subpoena blithely directs Mr. Stepien to produce five categories of documents

and things regarding the closure of access lanes to the George Washington Bridge in

1 A true and correct copy of the Subpoena is annexed to the Marino Certification as

Exhibit 1. Unless otherwise specified, all exhibits referenced in this Memorandum of Law are

annexed to the Marino Certification.

2

September 2013 (the Lane Closures) for the sixteen-month period from September 1, 2012, to

the present, and two categories of private property he used during the same period (calendars,

day planners, notes and/or diaries and smartphones, tablets, cellular phones, and personal

digital or data assistants, or any other similar device). In so doing, the Subpoena overtly seeks

to compel a testimonial act of production. Its first five categories call for the production of all

communications Mr. Stepien had regarding the Lane Closures; all documents and records he

exchanged regarding the Lane Closures; all of his telephone records regarding the Lane

Closures; all of his documents evidencing electronic communications regarding the Lane

Closures; and all of his video and audio recordings and voice mails regarding the Lane

Closures. By its very terms, the Subpoena thus directs Mr. Stepien to examine virtually every

document and thing in his possession, to determine which of those are, in his estimation,

documents and things regarding the Lane Closures, and to produce them as such. Although the

Committee argues that the Subpoena only requests that Mr. Stepien provide specified

information in his possession with respect to the Lane Closures, it in truth compels him to

specify and provide the information in his possession regarding the Lane Closures that is,

to use his own mental processes to locate, identify, and authenticate the documents and things

reflecting such information. With all respect due the Committee, it would be difficult to conjure

a subpoena that more clearly calls for a testimonial act of production.

Beyond disputing that its Subpoena compels testimony, the Committee makes the yet

more absurd argument that Mr. Stepien cannot rely on the Fifth Amendment and its state law

analogue because he is not in any real danger of incrimination. To be sure, Mr. Stepien is an

innocent man. But his innocence by no means ensures, or even suggests, that he will not be

ensnared by ambiguous circumstances if forced to comply with the Subpoena. Indeed,

3

Committee Chairman John Wisniewski personally thrust Mr. Stepien into the vortex of the Lane

Closure controversy by releasing his innocuous emails to the press in tandem with the incendiary

emails of two state employees. Thereafter, Chairman Wisniewski seizing every opportunity

to meet the press and face the nation to discuss his burgeoning investigation has boldly

proclaimed that the Lane Closures at the heart of the Subpoena involved criminality, and has

repeatedly expressed his particular interest in Mr. Stepien. Not surprisingly, the Chairmans

public pronouncements led quickly to the institution of a federal criminal investigation of the

same subject matter and of Mr. Stepien himself.

Having pre-determined the outcome of his Committees investigation and successfully

sparked a parallel grand jury probe, the Chairman clearly hopes these investigations will lead to

criminal charges.2 Moreover, Mr. Stepien is undeniably a subject, if not a target, of both

inquiries. In recent weeks, federal criminal investigators have made their interest in him plain,

traveling to his home and importuning his landlord and presumably others to provide information

about his conduct and character, their FBI and DOJ Criminal Investigator calling cards

leaving no doubt as to their intentions. Under the circumstances, to suggest that Mr. Stepien is

not at risk of incrimination is to defy common sense.

2 According to Chairman Wisniewski, the Committees Special Counsel has met with the United

States Attorney investigating the Lane Closures and other alleged acts of governmental abuse

and, based on that meeting, is comfortable that this investigation can proceed on a parallel track. (Exhibit 37, Feb. 2, 2014 Meet The Press Transcript, at 27.) That a politician armed with subpoena power and spoiling for higher office particularly one who has openly prejudged his investigation and whose counsel is consulting with federal prosecutors overseeing a similar

investigation can so freely disclose the information his legislative committee obtains by subpoena and provide the press with real-time updates on that evidence, conduct that would

violate Rule 6(e) of the Federal Rules of Criminal Procedure if engaged in by the United States

Attorney proceeding by grand jury subpoena, is a problem for another day.

4

Beyond its baseless core arguments that the Subpoena does not call for a testimonial

act of production and that Mr. Stepien is not at risk of incrimination the Committee

desperately asks the Court to disregard Mr. Stepiens constitutional and common law rights

because recognizing them would frustrate criminal investigations, thereby facilitating a potential

attack on the United States. That national security concern is unfounded. For more than two

centuries, our federal and state governments have applied the privilege against self-incrimination

to prevent the kind of compelled testimony sought here without imperiling the nation. While the

Committees work is no doubt important, it seems safe to assume that the Union will not crumble

if Chairman Wisniewski is denied the ability to compel Mr. Stepien to testify against himself.

Finally, the Committee argues that New Jerseys broad common law privilege against

self-incrimination does not apply here because an individual loses his privacy interest in an e-

mail or text message as soon as it is sent. No court federal or state has ever adopted that

argument, which would make the constitutional proscription of unreasonable searches and

seizures a dead letter. Instead, federal courts routinely recognize that individuals have a

reasonable expectation of privacy in their e-mail and other private communications. More

importantly, New Jersey has interpreted an individuals privacy interests more expansively than

these federal courts, finding that our state constitution protects against the forced disclosure of

phone records, e-mails, and other documents even when they are disclosed to third parties.

This action raises important issues, but not difficult ones. Few rights enshrined in the

constitution and laws of our nation and our state are as well settled or essential to our system of

government as the privilege against self-incrimination and the right of privacy. The Committee

would transgress those sacred rights by compelling Mr. Stepien, a man at risk of incrimination,

5

to commit a testimonial act of production and to produce his private communications and other

personal information. Its attempt to do so should be roundly rejected.

STATEMENT OF FACTS

A. The Transportation Committees Investigation Into The Lane Closures And Chairman Wisniewskis Mischaracterization Of Mr. Stepiens Involvement In Those Lane Closures.

The Lane Closures, by which the Port Authority reduced the number of access lanes from

Fort Lee to the George Washington Bridge from three to one, occurred between September 9 and

September 13, 2013. Shortly thereafter, the Assembly Transportation, Public Works and

Independent Authorities Committee (the Transportation Committee) opened a legislative

inquiry into the reasons for those Lane Closures.

On October 1, 2013, The Wall Street Journal published an article discussing an e-mail

dated September 13, 2013, from Patrick Foye, Executive Director of the Port Authority, which

reversed the decision to close the lanes. (Exhibit 2, WALL ST. J., Port Chief Fumed Over Bridge

Jam, Oct. 1, 2013.) In that e-mail, Mr. Foye stated, among other things, that the hasty and ill-

advised decision to close the access lanes violate[d] Federal Law and the laws of both States

[New Jersey and New York]. (Exhibit 3, Foye e-mail dated Sept. 13, 2013.)

On or about December 12, 2013, the Transportation Committee issued document

subpoenas to current and former Port Authority officials, including former Port Authority officer

David Wildstein. (Exhibit 4, Dec. 12, 2013 Wildstein Subpoena.) Those subpoenas demanded

documents and correspondence for the period from August 1, 2013, to the date of their issuance

concerning the reduction from three to one of the eastbound Fort Lee, New Jersey access lanes

to the George Washington Bridge from September 9, 2013 through September 13, 2013. (Id.)

In response to his subpoena, Mr. Wildstein produced 907 pages of redacted documents, including

6

e-mails and text messages. (Exhibit 5, Transcript of Jan. 9, 2014 Transportation Committee

Hearing, at 9.) The other subpoena recipients produced more than a thousand additional pages.

On December 30, 2013, the Transportation Committee issued a subpoena ad

testificandum to Mr. Wildstein, demanding that he appear and testify before that committee on

January 9, 2014. (Exhibit 6, Dec. 30, 2013 Wildstein Subpoena.)

On January 8, 2014, one day before Mr. Wildstein was to appear at the hearing, twenty-

two of the approximately two thousand pages of documents produced to the Transportation

Committee were released to the press. (Exhibit 7, The Record, Christie stuck in a jam over

GWB lane closings, Jan. 8, 2014; Exhibit 8 (documents released on January 8).) Those twenty-

two pages consisted primarily of e-mails and text messages between and among (i) Bridget Anne

Kelly, Governor Chris Christies then-Deputy Chief-of-Staff; (ii) Mr. Wildstein; and (iii)

William Baroni, the Port Authoritys Deputy Executive Director. Most notable among those

pages was an e-mail from Ms. Kelly to Mr. Wildstein dated August 13, 2013, stating: Time for

some traffic problems in Fort Lee. (Exhibit 8.) Also included in the twenty-two pages were

two e-mail exchanges between Mr. Wildstein and Mr. Stepien concerning articles that appeared

in the press after the Lane Closures had occurred.3 (Exhibit 9.)

Concurrent with the publication of those documents, Chairman Wisniewski held a press

conference in which he described the twenty-two published pages as shocking and outrageous

and commented extensively on their criminal and other implications:

3 The Committee states that it already has evidence that Mr. Stepien received

information related to the reassignment of the access lanes, even while that reassignment was

ongoing (and not only after it had happened, as Mr. Stepien contends). (Committee Br. at 9 (emphasis supplied).) Mr. Stepien has never contended that he only learned of the Lane Closures

after the lanes were re-opened; indeed, e-mails released to the public make clear that he received

notice of the closures while they were ongoing. To the extent the Committee believes he has

denied contemporaneous knowledge of the Lane Closures, it is mistaken.

7

[A]s you all recall, the e-mail that Pat Foye sent . . . said that federal and state laws were broken here. . . . [S]ome of

the federal laws that were broken were the Bridge Act. . . .

[W]ere looking into what state laws were broken.

If . . . laws have been broken, [law enforcement agencies] should, and I would encourage them to look at this, because

it seems to me that at least some laws have been broken.

(Exhibit 10, Transcript of Press Conference by Committee Chairman John S. Wisniewski and

Senate Majority Leader Loretta Weinberg on Jan. 8, 2014, at 3:5-10, 4:7-10.)

Chairman Wisniewski further made clear that, although the Transportation Committee

had initially focused on the Lane Closures, its investigation now extended far beyond that, to

include any cover-up and any potential abuse of government power:

[I]f this could happen at the Port Authority, how else has government been abused for the political advantage of the

Governor in other agencies? Has the Division of Revenue

been utilized improperly? Has the Department of

Community Affairs been . . . utilized improperly? And so

the questions go on and on. . . . [A]nd so it begs the

question, what else is out there that we dont know?

[W]hat else has happened that we havent found out? What else is going on that we dont know about?

(Id. at 5:7-24, 7:23-25.) Chairman Wisniewski also suggested that Mr. Stepien was involved in

the Lane Closures although the documents published to coincide with the press conference did

not evidence such involvement. (Id. at 2:11-14 ([W]ere going to have to get answers to the

questions that have been put at our feet today. What was Bridget Kellys involvement? . . . .

[W]hat was Mr. Stepiens involvement?); id. at 6:14-16 (stating that individuals involved in

[Mr. Christies] campaign were all involved, either before, during, or after).) Chairman

Wisniewski highlighted Mr. Stepiens alleged involvement again at a press conference the

following day. (Exhibit 12, Transcript of Jan. 9, 2014 Press Conference, at 2:11-14 (I think we

have a list of people that grows exponentially each time we get additional information. We need

8

to hear from Bridget Kelly. We need to hear from Mr. Stepien.); id. at 2:21-22 (Turn over the

e-mails from Bridget Kelly. Turn over the e-mails from Bill Stepien.); id. at 3:6-16 (I think

Bridget Kelly . . . is a logical individual to bring before the committee. I think that we need to

hear from Mr. Stepien. I mean, clearly, these are two people that the Governor was most

outraged at, where he terminated Bridget Kelly and revoked his nomination of Mr. Stepien as

state GOP Chairman and took away his consulting contract with the RGA. . . . [S]ince they are

the focus of the Governors ire in this, it would be appropriate for us to ask them questions about

what they knew, . . . who they discussed it with, . . . was the Governor involved, and . . . who

knew what when.).)

On January 9, 2014, Mr. Wildstein appeared before the Transportation Committee but

refused to testify. In connection with that hearing, the Transportation Committee voted to, and

did, make the documents produced pursuant to the December 2013 subpoenas part of the public

record. (Exhibit 5, Transcript of Jan. 9, 2014 Transportation Committee Hearing, at 9-11.) The

Transportation Committee posted those many documents on the Legislatures website the

following day; none suggested that Mr. Stepien had knowledge of the reasons for the Lane

Closures, much less involvement in the decision to close them.

In the ensuing days, Chairman Wisniewski continued to publicize his belief that the Lane

Closures entailed criminal conduct, stating, [p]ublic resources the bridge, police officers

all were used for a political purpose, for some type of retribution, and that violates the law.

(Exhibit 13, CNN, NJ Democrat lawmaker on traffic scandal: I do think laws have been

broken, Jan. 12, 2014.) Chairman Wisniewski repeated that opinion when appearing on Face

the Nation, stating, when you use the George Washington Bridge for . . . a political payback,

that amounts to using public property for a private purpose or for a political purpose, and thats

9

not legal. And so that constitutes a crime. (Exhibit 14, Transcript of Chairman Wisniewskis

Face the Nation interview broadcast on Jan. 12, 2014.)

B. Formation Of The New Jersey Select Legislative Committee And Its Wide-Ranging Investigation Into Perceived Abuses of Government Power.

On January 16, 2014, the New Jersey General Assembly passed a resolution creating the

Assembly Select Committee on Investigation (the Assembly Committee), to be chaired by

Assemblyman Wisniewski, and charged it with investigating concerns about abuse of

government power or an attempt to conceal an abuse of government power, including, but not

limited to, the reassignment of access lanes in Fort Lee, New Jersey to the George Washington

Bridge. (Exhibit 15, AR-10 2.) The resolution gave the Assembly Committee the

investigative powers conferred by Chapter 13 of Title 52 of the Revised Statutes of New Jersey,

along with the power to report possible violations of any law, rule, regulation, or code to

appropriate federal, State, or local authorities. (Id., AR-10, 3a(8).) The Senate passed a

similar resolution that same day creating the Senate Select Committee on Investigation. (Exhibit

16, SR-1.)

Upon convening on January 16, 2014, the Assembly Committee passed an organizational

resolution authoriz[ing] Chairperson John S. Wisniewski to issue, in accordance with the Code

of Fair Procedure, subpoenas under his signature to compel the production of relevant documents

and other information, [and to] compel the attendance and testimony before the Committee of

any individuals with information relevant to the investigation. (Exhibit 17, Transcript of Jan.

16, 2014 Assembly Committee Meeting, at 5.) That resolution passed over the objection of some

Committee members to its grant of unilateral[] subpoena power to the Chairperson

effectively creating a committee of one that dispensed with the need to com[e] before the

Committee for a determination as to whether those subpoenas should be issued in the first

10

instance. (Id. at 5-6; see also id. at 12 ([A]ll of the procedural sections [of the resolution] are

basically organized around the principle of authorizing the Chairperson to do this, and that, and

the other thing. And with the greatest respect, Mr. Chairman, it seems to me thats not a

democratic process; thats a series of decisions by fiat.).)

At the Assembly Committees meeting on January 16, 2014, Chairman Wisniewski once

again confirmed what he had already told the press: that the Committees investigation was not

confined to the Lane Closures, but rather was designed to find out where the abuse of power

began and how deep it went. (Id. at 22-23.) The Chairman stated that the investigation had no

predetermined destination, would not exclude anything, and would follow the facts

wherever they may lead us. (Id. at 4.)

To that end, the Assembly Committee issued twenty wide-ranging subpoenas. One of the

subpoenas was addressed to the Office of the Governor and another to Governor Christies

campaign committee, Chris Christie for Governor, Inc. (Exhibit 18, Jan. 16, 2014 Subpoena to

the Governors Office; Exhibit 19, Jan. 16, 2014 Subpoena to Chris Christie for Governor, Inc.)

The remaining subpoenas were sent to individuals, including Mr. Stepien, associated either with

the Port Authority, the Governors campaign committee, or the Governors office. (Exhibit 20,

MSNBC, Whos who on the Bridgegate subpoena list, Jan. 17, 2014.) Unlike the subpoenas

issued in December 2013, the January 2014 subpoenas were not limited to the period beginning

on August 1, 2013, but extended back an additional eleven months. (See Exhibit 21, Jan. 16,

2014 Subpoena to William Stepien.)

On January 18, 2014, Dawn Zimmer, the Mayor of Hoboken, alleged that the Christie

administration had withheld Sandy relief funds due to her failure to support a real-estate project

favored by the administration. (Exhibit 22, WALL ST. J., Hobokens mayor is accusing New

11

Jersey Gov. Christies office of retribution, Jan. 18, 2014.) Specifically, Mayor Zimmer alleged

that Lieutenant Governor Kim Guadagno and Department of Community Affairs Commissioner

Richard Constable informed her that Hoboken would not receive Sandy aid until she supported a

development project proposed by a client of Port Authority Chairman David Samson, a close

confidante of the Governor. (Id.) According to commentators, Mayor Zimmers allegations

raised the specter of a number of potential crimes, not the least of which could be extortion.

(Exhibit 23, NJSpotlight, Analysis: U.S. Attorneys Trail Shows Hoboken Charges More

Serious, Feb. 5, 2014 (The idea that the state would hold up the administration of federal funds

unless the governors office could exact some benefit for itself or for a client of Samson is very

serious. There were countless criminal indictments made on a lot less than that during Christies

years as U.S. Attorney.).)

Appearing on the national new program Meet the Press, Chairman Wisniewski seized the

opportunity to comment on these allegations and confirmed that the Committees investigation

encompassed them as well. (See Exhibit 24, Transcript of Jan. 9, 2014 broadcast of Meet the

Press ([C]learly, the allegation that [Mayor Zimmer] was asked to support a redevelopment

project where there was funding from the [P]ort [A]uthority, which were investigating, in turn

for her getting money for her municipality raises serious allegations. We dont know where it

goes. We dont know if theres more to it. But I think its something the committee has to

consider as part of the overall investigation.).)

On January 27, 2014, the Assembly Committee passed the torch of its expanding

investigation to the Committee, which was formed pursuant to concurrent resolutions of the

Assembly and the Senate authorizing it to investigate all aspects of the finances, operations, and

management of the Port Authority of New York and New Jersey and any other matter raising

12

concerns about abuse of government power or an attempt to conceal an abuse of government

power including, but not limited to, the reassignment of access lanes in Fort Lee, New Jersey to

the George Washington Bridge. (Exhibit 25, ACR-10 2; Exhibit 26, SCR-49 2.) The joint

concurrent resolutions, like the resolutions that preceded them, gave the Committee the

investigative powers conferred pursuant to chapter 13 of Title 52 of the Revised Statutes, as

well as the power to report possible violations of any law, rule, regulation, or code to

appropriate federal, State, or local authorities. (Exhibit 25, ACR-10 3a(1),(8); Exhibit 26,

SCR-49 2.)

Chairman Wisniewski immediately confirmed that the Committees investigation was

both wide-ranging and evolving:

[W]e dont know what the next set of . . . subpoenas . . . will deliver for us. We dont know where it will take us. (Exhibit 27, Transcript of Jan. 27, 2014 Committee Meeting, at 19-20.)

I dont know what allegations and concerns may present themselves as we proceed. I do know the allegations and

concerns that are in front of us now. An e-mail was

issued by a Deputy Chief of Staff that clearly was

inappropriate, clearly abused her authority, and then

there was an effort to conceal that. . . . We dont know why, we dont know how, we dont know who else was involved. And theres a lot of work to be undertaken just to get to those answers. (Id. at 21.)

We have our work cut out for us. But we also dont know where that work will lead us. We dont know if an e-mail that is a predecessor to the e-mail that closed the

lanes leads us somewhere else in the Governors Office, leads us into a political campaign, leads us into some

other area we havent anticipated. (Id.)

[W]ell go wherever the documents and the witnesses take us. (Id. at 22.)

13

To continue pursuing this wide-ranging and ever-expanding investigation, the Committee re-

issued the same subpoenas previously issued on January 16, 2014, with the same return date.

(Id. at 1.)

C. The Parallel Federal Investigations.

At least three federal investigations have been launched in the wake of the Transportation

Committees initial probe.

At the same time the Transportation Committee was investigating the Lane Closures, the

United States Senate Committee on Commerce, Science, and Transportation (the Senate

Transportation Committee) voiced its own serious concerns about events that led to the Port

Authoritys unannounced lane closures on the George Washington Bridge in September 2013.

(Exhibit 28, Letter from Sen. Rockefeller dated Dec. 16, 2013.) Those concerns prompted the

Senate Transportation Committee to demand a comprehensive investigation of the Port

Authoritys actions. (Id.)

On or about January 14, 2014, the website NJ.com revealed that the federal Inspector

General had ordered an audit of the Governors use of $25 million in Sandy relief funds for a

tourism ad that featured the Governor and his family. (Exhibit 29, NJ.com, U.S. to investigate

Gov. Christies post-Hurricane Sandy Stronger Than the Storm ad campaign, Jan. 14, 2014.)

At or about that time, the United States Attorneys Office for the District of New Jersey

confirmed that it had opened a grand jury investigation into the Lane Closures and that it had

issued subpoenas in furtherance of that investigation. (Exhibit 30, N.Y. TIMES, U.S. Attorney

Subpoenas Christies Campaign and New Jersey G.O.P., Jan. 23, 2014.) On January 23, 2014,

The New York Times reported that Mayor Zimmer had met with representatives of the U.S.

Attorneys Office concerning her allegations, and had supplied evidence corroborating her

account. (Exhibit 31, N.Y. TIMES, U.S. Attorney Said to Meet with Hoboken Mayor, Jan. 20,

14

2014.) On February 24, 2014, The Star-Ledger reported that Fort Lee Mayor Mark Sokolich had

also met with U.S. Attorneys Office representatives in Newark to discuss the circumstances of

the Lane Closures. (Exhibit 32, The Star-Ledger, Fort Lee Mayor Mark Sokolich met with U.S.

Attorneys Office, Feb. 24, 2014.) And on February 27, 2014, The Star-Ledger reported that

Michael Drewniak, the Governors long-time spokesman and current press secretary, met with

federal prosecutors for several hours to answer questions about his role in the September

lane closings. (Exhibit 33, The Star-Ledger, Bridge scandal: Christies press secretary meets

with federal prosecutors, Feb. 28, 2014.)

D. The Governor Severs Ties With Mr. Stepien And The Committee Insists That He Comply With A Subpoena That Is Unconstitutional On Its Face.

1. The Governors Immediate Severance Of Ties With Mr. Stepien Upon

Publication Of The Twenty-Two Pages Of Documents On January 8,

2014.

Mr. Stepien served as Governor Christies Deputy Chief of Staff from the beginning of

his first term in office until April 26, 2013, when he left the administration to manage the

Governors re-election campaign. On Tuesday, January 7, 2014, Governor Christie announced

that Mr. Stepien, who had already been retained as a consultant to the Republican Governors

Association, would become the Chairman of the New Jersey Republican Party. (Exhibit 34, The

Star-Ledger, Chris Christie campaign manager to lead N.J. Republican Party, Jan. 7, 2014.) That

day, Governor Christie said, Bill Stepien is the best Republican operative in the country, and

New Jersey Republicans will be fortunate to have him leading our party. (Id.)

Within hours of Chairman Wisniewskis January 8, 2014 press conference, however,

Governor Christie asked Mr. Stepien not to seek the chairmanship of the New Jersey Republican

Party and terminated his consultancy with the Republican Governors Association, thus severing

all ties with him. (Exhibit 11, Transcript of Jan. 9, 2014 Christie Press Conference, at 13 (By

15

7:00 yesterday evening, Bill Stepien was asked to leave my organization.).) During a press

conference held on January 9, 2014, the Governor recounted Mr. Stepiens representation that he

knew absolutely nothing about the closures, and acknowledged that the two e-mails involving

Mr. Stepien that surfaced on January 8, 2014, were well after the fact. (Id. at 17; see also id. at

19 (What [Mr. Stepien] told me at the time is not contradicted by the emails).) But

undoubtedly due to their inclusion in the handful of inflammatory documents produced on

January 8, 2014, the Governor said that the tone and behavior and attitude of callous

indifference reflected in those e-mails had caused him to lose [his] confidence in Mr.

Stepiens judgment. (Id. at 2.) Indicating that he had not spoken with Mr. Stepien before

severing ties with him, the Governor noted that Chairman Wisniewski said pretty clearly

yesterday that he intends to ask Bridget Kelly and Bill Stepien to testify and stated that he did

not want to get in the middle of that. (Id. at 19.)

2. The Federal Investigation Of Mr. Stepien.

On Friday, January 17, 2014, FBI Special Agent Arthur Durrant telephoned Mr. Stepien

on his cell phone. (Marino Certification, 39.) Mr. Stepien informed Mr. Durrant that he was

represented by counsel and asked Mr. Durrant to speak with his attorney, Kevin Marino. (Id.)

Shortly thereafter, Assistant United States Attorneys Rachel Honig and Lee Cortes called Mr.

Marino and expressed an interest in speaking with Mr. Stepien. (Id., 40.) Later that day, Mr.

Marino declined that invitation during a call with Mr. Cortes. (Id.)

In mid-February, 2014, Agent Durrant and DOJ Criminal Investigator James Otten

visited Mr. Stepiens Mercer County home in his absence, questioned his landlord about his

conduct and character was he married, was he a rowdy tenant, did he pay his rent on time

and left behind their calling cards, which prominently identified them as criminal investigators

16

and left no doubt as to the nature of their investigation. (Id., 41.) The landlord subsequently

provided those calling cards to Mr. Stepien, who turned them over to counsel. (Exhibit 38,

Calling Cards.)

3. The Subpoena To Mr. Stepien.

As presaged by Chairman Wisniewskis comments at the January 8, 2014, press

conference, Mr. Stepien was among the twenty individuals and institutions subpoenaed on

January 16, 2014. The subpoena demanded that, for the period September 1, 2012 to the present,

Mr. Stepien produce the following documents and things:

1. All communications of any kind, including, but not limited to, any correspondence, notes, documents, electronic mail transmissions, text messages,

Blackberry Messenger messages (a/k/a BBM messages), any and all instant messages or other electronically stored data or information, including, without limitation, any instant messages sent via any web or cellular phone based messaging systems, whether exchanged via use of a personal computational

device, including without limitation devices commonly known as desktops, laptops, smartbooks, tablets, smartphones, cellular phones, or iPads, and exchanged between you and any other person or entity, whether used by you in a

business, personal, or any other capacity, between September 1, 2012 and the

present date regarding the reduction from three to one of the eastbound Fort Lee,

New Jersey access lanes to the George Washington Bridge from September 9,

2013 through September 13, 2013.

2. All documents and records of any kind, including, but not limited to, any correspondence, notes, documents, electronic mail transmissions, text messages,

Blackberry Messenger messages (a/k/a BBM messages), any and all instant messages whether sent via a personal computational device or cellular phone via any and all web or cellular phone based messaging systems, any other

electronically stored data or information which is currently stored on any and all

personal computational devices in your possession, dominion, or control,

including, without limitation, devices commonly known as desktops, laptops, smartbooks, tablets, smartphones, cellular phones, or iPads, exchanged between you and any other person or entity, whether used by you in a business,

personal, or any other capacity, between September 1, 2012 and the present date

regarding the reduction from three to one of the eastbound Fort Lee, New Jersey

access lanes to the George Washington Bridge from September 9, 2013 through

September 13, 2013.

3. All documents of any kind whatsoever sufficient to show the date, time, originating and receiving telephone number, originating cell site and sector, and

duration for all incoming and outgoing calls for any phone number associated

17

with you in your personal capacity or in your capacity as an employee of the State

of New Jersey, or any other capacity, between September 1, 2012 and the present

date regarding the reduction from three to one of the eastbound Fort Lee, New

Jersey access lanes to the George Washington Bridge from September 9, 2013

through September 13, 2013.

4. All documents of any kind whatsoever evidencing electronic mail communications sent via any and all personal computational devices in your

possession, dominion, or control, including without limitation devices commonly

known as desktops, laptops, smartbooks, tablets, smartphones, cellular phones, or iPads, whether used by you in a business, personal, or any other capacity, relative to any and all communications between September 1, 2012 and

the present date regarding the reduction from three to one of the eastbound Fort

Lee, New Jersey access lanes to the George Washington Bridge from September

9, 2013 through September 13, 2013.

5. All video and audio recordings, and all voice mails, regarding the reduction from three to one of the eastbound Fort Lee, New Jersey access lanes to the George

Washington Bridge from September 9, 2013 through September 13, 2013.

6. All calendars, day planners, notes, and/or diaries from September 1, 2012 to the present.

7. All smartphones, tablets, cellular phones, and personal digital or data assistants, or any other similar device used by you at any time from September 1, 2012 to the

present, whether used by you in a business, personal, or any other capacity.

(Exhibit 21.) On January 27, 2014, the Committee issued an identical subpoena to Mr. Stepien.

(Exhibit 1.)

4. Mr. Stepiens Detailed Objections to the Subpoena and the Committees

Refusal to Withdraw It.

On January 31, 2014, Mr. Stepiens counsel sent the Committee a 19-page letter detailing

the Subpoenas deficiencies under the United States Constitution, the New Jersey State

Constitution, and New Jersey common law. (Bocchi Certification, Exhibit L.)

On February 3, 2014, Mr. Stepiens counsel and Special Counsel to the Committee

convened a telephone conference to discuss those objections. On that call, the Committees

lawyers insisted that the Subpoena did not run afoul of federal constitutional or New Jersey law,

but refused to explain their position. (Bocchi Certification, Exhibit Q, Feb. 18, 2014 letter.) The

Committee expressed its willingness to prioritize the production of certain documents in

18

response to the Subpoena while holding the remainder in abeyance, but declined to withdraw the

Subpoena. (Bocchi Certification, Exhibit N, Feb. 6, 2014 letter.)

On February 4, 2014, the Special Counsel wrote to Mr. Stepiens counsel, informing him

that, at this time, Mr. Stepien need only provide phone records and calendar entries with

respect to thirty-two individuals currently or formerly associated with the Governors Office and

the Port Authority. (Bocchi Certification, Exhibit M, Feb. 4, 2014 letter.) The letter confirmed

that the Committee will not be withdrawing the subpoena to Mr. Stepien. (Id.)

On February 10, 2014, the Committee voted along party lines to reject Mr. Stepiens

objections to the Subpoena and directed its Special Counsel to take all steps necessary to compel

compliance with it. (Bocchi Certification, Exhibit O.)

On February 11, 2014, the Committee informed Mr. Stepien of its determination that his

objections to the Subpoena as articulated in [his January 31, 2014 letter] are invalid, but again

refused to state why that was so. (Bocchi Certification, Exhibit P, Feb. 11, 2014 letter.) The

Committee also indicated that it would give Mr. Stepien a final date February 18, 2013

by which to comply with the Subpoena. (Id.)

On February 18, 2014, Mr. Stepien informed the Committee that he would not comply

with the Subpoena for the reasons expressed in his prior submission, renewed his request that the

Committee withdraw the Subpoena, and requested that if the Committee was unwilling to do so,

the parties confer with the Court about an orderly way of seeking judicial resolution of their

impasse. (Bocchi Certification, Exhibit Q.)

The following day, the Committee instead instituted this action against Mr. Stepien (and

a companion case against Ms. Kelly) by making ex parte application for an Order to Show Cause

why the Court should not (i) enforce the Subpoena as modified by its February 4, 2014 letter

19

(Compl. 1); and (ii) declare that Mr. Stepien has failed, without justification, to produce

documents in accordance with the subpoena. (Compl., Prayer for Relief, A.) This response

follows.

LEGAL ARGUMENT

I. THE SUBPOENA VIOLATES MR. STEPIENS RIGHT NOT TO INCRIMINATE HIMSELF.

The Committee contends that Mr. Stepien cannot avail himself of his constitutional and

common law right against self-incrimination, arguing that his act of producing documents

responsive to the Subpoena would not be a protected testimonial act and that he does not face a

substantial and real risk of incrimination. Those assertions reflect the Committees

fundamental misapprehension of the act of production doctrine at the heart of this case.

A. The Principles Underlying The Fifth Amendment And Its Protection Of The Innocent And Guilty Alike.

The Fifth Amendment to the United States Constitution provides that no person . . . shall

be compelled in any criminal case to be a witness against himself. One of that constitutional

guarantees basic functions is to protect innocent men . . . who otherwise might be ensnared

by ambiguous circumstances. Ohio v. Reiner, 532 U.S. 17, 21 (2001) (emphasis and alteration

in original; internal quotation marks omitted); see also United States v. Scala, 432 F. Supp. 2d

403, 407 (S.D.N.Y. 2006) (explaining that the risk of ensnare[ment] exists regardless of

whether the witness in fact is guilty of anything.). Indeed, it has long been held that the

privilege protects the innocent as well as the guilty, and is therefore properly invoked by one

who, like Mr. Stepien, denies all culpability. Reiner, 532 U.S. at 18; see also Carter v.

Kentucky, 450 U.S. 288, 300 (1981) (recognizing that the Fifth Amendment privilege against

self-incrimination is often a protection to the innocent (internal quotation marks omitted));

20

Quinn v. United States, 349 U.S. 155, 162 (1955) (noting the Courts consistent recognition of

the privilege as one of great value that affords a protection to the innocent though a shelter to

the guilty).

The United States Supreme Court has explained why the Fifth Amendment affords

shelter to the guilty and the innocent alike:

[The privilege against self-incrimination] reflects many of our

fundamental values and most noble aspirations: our unwillingness

to subject those suspected of crime to the cruel trilemma of self-

accusation, perjury or contempt; our preference for an accusatorial

rather than an inquisitorial system of criminal justice; our fear that

self-incriminating statements will be elicited by inhumane

treatment and abuses; our sense of fair play which dictates a fair

state-individual balance by requiring the government to leave the

individual alone until good cause is shown for disturbing him and

by requiring the government in its contest with the individual to

shoulder the entire load; our respect for the inviolability of the

human personality and of the right of each individual to a private

enclave where he may lead a private life; our distrust of self-

deprecatory statements; and our realization that the privilege, while

sometimes a shelter to the guilty, is often a protection to the

innocent.

Murphy v. Waterfront Commn of New York Harbor, 378 U.S. 52, 55 (1964) (internal quotation

marks and citations omitted).

2. The Extensive Protections Afforded by the Act of Production Doctrine.

It is well settled that, in addition to proscribing compulsory oral testimony that might

tend to incriminate the speaker, the Fifth Amendment protects innocent individuals against the

forced compulsion of acts that might tend to incriminate them. The first Supreme Court decision

to explicitly recognize this act of production aspect of the Fifth Amendment privilege was

Boyd v. United States, 116 U.S. 616 (1885). The defendants in Boyd were charged with

importing plate glass without paying customs duties. Id. at 617. To prove the quantity and value

21

of the glass, the government moved, pursuant to a statute requiring compliance on penalty of

confessing its allegations, for an order requiring the defendants to produce an invoice of the

glass. Id. at 618-19. The defendants produced the demanded invoice but objected to its

introduction at trial on the grounds that it was compelled in violation of their Fourth Amendment

right against unreasonable searches and seizures and their Fifth Amendment right against

compelled self-incrimination. Id. at 618.

The Supreme Court agreed with the defendants and struck down the statute compelling

the production as unconstitutional, finding that it authorized the invasion of [an individuals]

indefeasible right of personal security, personal liberty and private property, the very essence

of constitutional liberty and security at the heart of the Fourth and Fifth Amendments. Id. at

630. The Court reasoned that a contrary result would have offended the founding fathers

recognition that the social utility of broad evidentiary searches would be more pernicious to the

innocent than useful to the public. Id. at 629 (quoting Entick v. Carrington, 95 Eng. Rep. 807

(C. P. 1765)). Having fused the privacy interests underlying the Fourth and Fifth Amendments,

the Court concluded that a compulsory production of the private books and papers of the owner

of goods . . . is compelling him to be a witness against himself, within the meaning of the Fifth

Amendment to the Constitution, and is the equivalent of a search and seizure and an

unreasonable search and seizure within the meaning of the Fourth Amendment. Id. at 634-

35. Thus, under Boyd, the Fifth Amendment prohibited an individual from being compelled to

furnish his private books and papers to be used in evidence against him. Id. at 633; see also

Greenbaum v. United States, 280 F. 474, 481 (6th Cir. 1922) (holding that, under Boyd, it was

unconstitutional to compel the defendant to produce his private books and accounts).

22

In Fisher v. United States, 425 U.S. 391 (1976), the Supreme Court reconsidered Boyds

privacy-based rationale for proscribing the compulsory production of ones property. The Court

recognized that protecting personal privacy is one of the several purposes served by the

constitutional privilege against compelled self-incrimination, but explained that this privacy

interest was not absolute; the Supreme Courts Fifth Amendment jurisprudence since Boyd had

made clear that not every invasion of privacy violate[d] the privilege. Id. at 399; see also id. at

408 (noting that the Fifth Amendment does not prohibit the compelled production of blood

samples, handwriting exemplars, voice exemplars, and the donning of a blouse by the accused).

That jurisprudence, noted the Court, was consistent with the balanc[e] struck by the drafters of

the Fourth Amendment, in which an individuals privacy interest against unreasonable searches

and seizures yielded to the superior investigative interest of the government when there was

reason to believe incriminating evidence will be found. Id. at 400.

The Fisher Courts observation exposed the analytical flaw that pervaded Boyd that is,

its improper fusion of the Fourth and Fifth Amendments but did not otherwise discredit the

privacy-based rationale underlying Boyds application of the Fifth Amendment. See Richard A.

Nagareda, Compulsion To Be A Witness and the Resurrection of Boyd, 74 N.Y.U. L. Rev.

1575, 1581 (1999) (arguing that Boyd mistakenly conflated the Fourth and Fifth Amendments

but that its application of the Fifth Amendment, particularly as demonstrated in Justice Millers

concurring opinion, was otherwise sound); Samuel J. Alito, Jr., Documents and the Privilege

Against Self-Incrimination, 48 U. Pitt. L. Rev. 27, 36 (1986) (noting that it was improper for

Boyd to fuse the Fourth and Fifth Amendments because, while the Fourth Amendments

prohibition against unreasonable searches and seizures is broad . . . but . . . not absolute, the

Fifth Amendment occupies a more limited sphere [where] its prohibition is absolute.).

23

Having acknowledged this balance between individual and governmental interests, Fisher

clarified that the Fifth Amendment truly serves [the] privacy interests identified in Boyd where

the compelled act of production is testimonial in nature. Fisher, 425 U.S. at 399; id. at 408

([T]he Fifth Amendment does not independently proscribe the compelled production of every

sort of incriminating evidence but applies only when the accused is compelled to make a

testimonial communication that is incriminating.). In particular, the Court explained that the act

of producing documents had important communicative aspects of its own, wholly aside from

the contents of the papers produced. Id. at 410. These communicative aspects included the

tacit[] conce[ssion] [of] the existence of the papers demanded and their possession or control,

as well as that partys belief that the papers are those described in the subpoena. Id.; see also

id. at 411-12 (noting that production may implicitly admit the existence, possession, and

authentic[ity] of the things produced).

On the facts before it, the Court concluded that the compelled production did not rise to

the level of testimony within the protection of the Fifth Amendment because the existence

and location of the demanded papers were a foregone conclusion, id. at 411: the IRS was

already aware of the existence and whereabouts of the requested tax documents and, on that

basis, had subpoenaed them from the attorneys it knew had custody over them. Id. at 394; see

also Doe v. United States, 383 F.3d 905, 913 (9th Cir. 2004) (explaining that, in Fisher, the

government had prior knowledge that the documents were in the custodians possession and the

government could independently confirm their existence and authenticity through the

accountants who created them.). As a result, the documents production would have added

little or nothing to the sum total of the Governments information. Fisher, 425 U.S. at 411.

Separately, the Court noted that the production would not have authenticate[d] the requested

24

documents because the taxpayer did not prepare the papers and could not vouch for their

accuracy. Id. at 413. Thus, the documents would not have been admissible in evidence

against the taxpayer without authenticating testimony. Id.

In reaching this conclusion, the Court was careful to note that its ruling did not address a

situation involving an individuals private papers. Id. at 414 (quoting Boyd, 116 U.S. at 634-

35). As Justice Marshall explained in his concurrence, had the Court confronted such a situation,

the new but substantial[] Fifth Amendment protections safeguarded by the Court likely

would have afford[ed] almost complete protection against compulsory production. Id. at 432

(Marshall, J., concurring). Indeed, Justice Marshall was hopeful that the Courts new theory,

properly understood and applied, [would] provide substantially the same protection as [the

Courts] prior focus on the contents of the documents [in Boyd]. Id.

Justice Marshalls observations proved prescient. In United States v. Doe, 465 U.S. 605,

606 (1984), the Supreme Court reviewed a decision to quash subpoenas issued to the owner of

several sole proprietorships. The subpoenas sought production of the telephone records of

several of [the owners] companies and all records pertaining to four bank accounts of [the

owner] and his companies; a list of virtually all the business records for two of the

companies; and production of all bank statements and cancelled checks of two of [the owners]

companies that had offshore accounts. Id. at 606-07. The district court held that the production

violated the owners privilege against self-incrimination because the production would admit

that the records exist, that they are in his possession, and that they are authentic. Id. The

Third Circuit affirmed, agreeing with the district court that turning over the documents would

admit their existence and authenticity. Id. at 609. The Supreme Court deferred to these courts

25

factual findings, noting their consistency with Fishers reasoning and rationale. Id. at 610-

611.

The Supreme Court most recently applied Fishers expansive protections in United States

v. Hubbell, 530 U.S. 27 (2000). In Hubbell, the Independent Counsel investigating the

Whitewater affair suspected that the defendant, Webster Hubbell, had breached a prior plea

agreement by failing to produce, as promised, full, complete, accurate, and truthful

information about matters relating to the Whitewater investigation. Id. at 30. The

government thereupon issued Hubbell a broadly worded subpoena calling for any and all

documents reflecting, referring, or relating to eleven categories of documents concerning the

defendants financial transactions, billing practices, and other activities. Id. at 41, 46. Upon

Hubbells invocation of the Fifth Amendment in response to the subpoena, the government

obtained an order compelling him to produce the documents pursuant to a grant of use and

derivative use immunity. Id. at 31. The government subsequently used those documents to

indict Hubbell for crimes unrelated to [his] plea agreement. Id. at 42. The district court

dismissed that indictment, holding that it was impermissibly derived from Hubbells act of

production. Id. at 32.

The Supreme Court affirmed, holding that the government made impermissible derivative

use of the testimonial aspects of Hubbells production. In doing so, the Court reiterated that a

production has protected testimonial components when it communicate[s] information about

the existence, custody, and authenticity of the produced documents. Id. at 37. The Court held

that Hubbells production had these testimonial components because it was apparent from the

text of the subpoena itself that the prosecutor needed [Hubbells] assistance both to identify

potential sources of information and to produce those sources. Id. at 41. Given the breadth of

26

the descriptions of the 11 categories of documents, the Court explained, the collection and

production of the materials demanded was tantamount to answering a series of interrogatories

asking a witness to disclose the existence and location of particular documents fitting certain

broad descriptions. Id.; see also id. at 41-42 (The assembly of literally hundreds of pages of

material in response to a request for any and all documents reflecting, referring, or relating to

any direct or indirect sources of money or other things of value received by or provided to an

individual or members of his family during a 3-year period is the functional equivalent of the

preparation of an answer to either a detailed written interrogatory or a series of oral questions at

a discovery deposition. (internal citation omitted)).

Thus, the Court concluded that, [e]ntirely apart from the contents of the documents, the

production provided a testimonial catalog that could have provided the prosecution with a

lead to incriminating evidence or a link in the chain of evidence needed to prosecute. Id. at

42 (internal quotation marks omitted); see also id. (It is abundantly clear that the testimonial

aspect of [Hubbells] act of producing subpoenaed documents was the first step in a chain of

evidence that led to this prosecution.). In other words, it was only through Hubbells truthful

reply to the subpoena that the Government received the incriminating documents. Id. at 42-43;

see also id. at 42 n.23 (citing, inter alia, William J. Stuntz, Self-Incrimination and Excuse, 88

Colum. L. Rev. 1227, 1228-1229, 1256-1259, 1277-1279 (1988), to highlight the conceptual

link between truth-telling and the privilege in the document production context). The Court

emphasized that, to furnish this testimonial catalog, it was unquestionably necessary for

[Hubbell] to make extensive use of the contents of his own mind in identifying the hundreds of

documents responsive to the requests in the subpoena. Hubbell, 530 U.S. at 43 (internal

quotation marks omitted). That use was not neutralized by the governments claim that the

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existence, location, and authenticity of the documents were a foregone conclusion because,

unlike in Fisher, the government failed to show that it had any prior knowledge of either the

existence or the whereabouts of the 13,120 pages of documents ultimately produced. Id.; see

also id. (rejecting the governments argument that a businessman such as Hubbell will always

possess general business and tax records that fall within the broad categories described in this

subpoena).

As these cases demonstrate, the act-of-production doctrine has evolved since its

inception to a broader prophylactic regime that inoculates people from being forced to

contribute to their own prosecution. In re Grand Jury Subpoena Dated February 2, 2012, __

F.3d __, No. 13-403-cv, 2013 U.S. App. LEXIS 25316, at *9 (2d Cir. Dec. 19, 2013). Thus, as

Hubbell reflects, while Fisher refined Boyds absolutist approach by permitting the government

to compel the production of particular documents whose existence and location are known to it

without violating the constitution, a subpoena that compels one to identify and produce

documents that he concludes pertain to a particular subject violates the Fifth Amendment under

the Fisher-Doe-Hubbell line of cases as assuredly as it did under Boyd. See Lance Cole, The

Fifth Amendment and Compelled Production of Personal Documents After United States v.

Hubbell - New Protection for Private Papers?, 29 Am. J. Crim. L. 123, 191 (2002) ([T]he

application of the Fifth Amendment to an individuals private papers may have returned very

nearly to the level of protection that Boyd was understood to provide.).

Consistent with the broad[] prophylactic regime established by the Supreme Court,

lower federal courts have consistently refused to enforce subpoenas where compliance would

implicitly attest to the existence, location, or authenticity of the produced documents and things.

See Grand Jury Subpoena Dated February 2, 2012, 2013 U.S. App. LEXIS 25316, at *2, 7, 9

28

(noting the uncontested fact that, absent an exception, the robust act of production privilege

precluded the government from demanding an individuals foreign bank account records); In

re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335, 1346 (11th Cir. 2012) (holding that the

act-of-production privilege precluded the government from forcing a subpoena recipient to

decrypt and produce the contents of a computer because the explicit and implicit factual

communications associated with the decryption and production are not foregone conclusions);

United States v. Ponds, 454 F.3d 313, 325 (D.C. Cir. 2006) (holding that the government could

not compel the production of documents where it lacked prior knowledge of their existence

or defendants alleged possession thereof); In re Grand Jury Subpoena, 383 F.3d 905, 911 (9th

Cir. 2004) (A subpoena such as this, which seeks all documents within a category but fails to

describe those documents with any specificity indicates that the government needs the act of

production to build its case); In re Grand Jury Subpoena Duces Tecum, 466 F. Supp. 325, 327

(S.D.N.Y. 1979) (quashing a subpoena that would have compelled the target of a grand jury

investigation to be a witness against himself by forcing him to compile papers and

acknowledge their existence.).

B. The Subpoena Violates The Extensive Protections Afforded By the Act-of-Production Doctrine.

In this case, the Subpoena directs Mr. Stepien to produce all communications (Request

No. 1), documents and records of any kind (Request No. 2), telephone records (Request No. 3),

email communications (Request No. 4), and video and audio recordings (Request No. 5) between

September 1, 2012 and the present date regarding the reduction from three to one of the

eastbound Fort Lee, New Jersey access lanes to the George Washington Bridge from September

9, 2013 through September 13, 2013. (Exhibit 1, Subpoena.) To compel Mr. Stepien to review

his private papers and records and identify for the Committee those, if any, that relate to the Lane

29

Closures is tantamount to compelling his testimony that such documents exist, that they are in his

possession, and that they are authentic. Such compulsory testimony is prohibited under settled

jurisprudence of the highest courts of this state and the United States.

1. The Committee Misreads Hubbell.

As shown above, the Fifth Amendment prohibits the government from forc[ing] an

individual to contribute to [his] own prosecution. In re Grand Jury Subpoena Dated February 2,

2012, 2013 U.S. App. LEXIS 25316, at *9. An individual is so compelled when his act of

production reveals to the government the (i) existence, (ii) custody, or (iii) authenticity of

documents or things that might furnish a link in the chain of evidence needed to convict him.

Hubbell, 530 U.S. at 36-37; Doe, 465 U.S. at 608 (affirming ruling that production would

implicitly attest that the items the defendant produced exist, are in his possession, and are

authentic). Here, by the Committees own extensive admissions, the Subpoena plainly demands

that Mr. Stepien, through his act of production, provide all three protected forms of testimonial

communications.

In an effort to salvage the Subpoena, the Committee misreads Hubbell to say that the act-

of-production doctrine applies only if the defendants implicit admissions of existence, location,

and authenticity are themselves incriminating. (Committee Br. at 13 (emphasis added).) That

is not what Hubbell says. To the contrary, Hubbell held that [c]ompelled testimony that

communicates information that may lead to incriminating evidence is privileged even if the

information itself is not inculpatory. (quoting Doe v. United States, 487 U.S. 201, 208 n.6

(1988).) That holding is consistent with the long-settled notion that the privilege against self-

incrimination extends not only . . . to answers that would in themselves support a conviction

under a federal criminal statute but likewise embraces those which would furnish a link in the

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chain of evidence needed to prosecute the claimant for a federal crime. Hoffman v.United

States, 341 U.S. 479, 486 (1951) (emphasis added); see also Blau v. United States, 340 U.S. 159,

161 (1950) (noting that the Supreme Court has, from the beginning, interpreted the Fifth

Amendment to apply when testimony might furnish[] a link in the chain of evidence needed in a

prosecution, and not simply when admissions by themselves would support a conviction under

a criminal statute); accord In re Grand Jury Empaneled on April 6, 1993, 869 F. Supp. 298, 308

(D.N.J. 1994).

On this point, Hubbell could not have been clearer. The issue in Hubbell was not, as the

Committee states, whether the defendants production of documents would itself be an

admission of guilt because it would confirm his failure to produce documents required by his

plea agreement. (Committee Br. at 14.) The defendant had received a statutory grant of use

and derivative use immunity, meaning that the government could not have used his act of

production to prosecute him for crimes relating to his prior production failures even if it had

wanted to. Hubbell, 530 U.S. at 41 (explaining that the government had no intention of making

. . . use of respondents compelled testimony). The actual issue, as the Committee concedes in

a footnote buried deep in its discussion, was whether the government made impermissible

derivative use of the testimonial aspects of the production to indict the defendant for tax

crimes that were unrelated to his prior production failures. (Committee Br. at 14 n.4

(emphasis added)); see also Hubbell, 530 U.S. at 42 (The use of those sources of information

eventually led to the return of an indictment by a grand jury sitting in the District of Columbia

for offenses that apparently are unrelated to [Hubbells] plea agreement.).

The Court easily concluded that the government did make such impermissible derivative

use of the production because the documents it used to secure the indictment were derived from

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Hubbells assistance both to identify potential sources of information and to produce these

sources. Hubbell, 530 U.S. at 41; see also id. at 41-42 (Entirely apart from the contents of the

13,120 pages of materials that [Hubbell] produced in this case, it is undeniable that providing a

catalog of existing documents fitting within any of the 11 broadly worded subpoena categories

could provide a prosecutor with a lead to incriminating evidence, or a link in the chain of

evidence needed to prosecute.); Ponds, 454 F.3d at 322 (explaining that, under Hubbell, [i]f

the existence or location of the item was revealed through compelled testimony, the item is

derivative of the testimony and may not be used by the government against the witness-

defendant.). This assistance was protected not because it was incriminating in itself

indeed, given the immunity grant, it could not have been but because it was the first step in a

chain of evidence that led to [Hubbells] prosecution for crimes that had nothing to do with his

possession of documents. Hubbell, 530 U.S. at 42.

In this case, the act of producing documents responsive to Request Nos. 1-5 of the

Subpoena, if they exist, could certainly be used to suggest that Mr. Stepien was involved in the

planning or execution of the Lane Closures; to date the Committee has adduced no such

evidence. The Committee asserts that Hubbell is inapplicable here because there is nothing

about the mere possession of documents containing communications about the reassignment of

access lanes to the George Washington Bridge that is potentially incriminating. (Committee Br.

at 15.) That assertion is directly at odds with Chairman Wisniewskis prior statements about the

direction of his Committees investigation and its theory of wrongdoing. The Chairman stated

publicly, based on his review of the August 13th

e-mail from Bridget Kelly, that laws have been

broken. He pointed out that the Committee does not know if an e-mail that is a predecessor to

the e-mail that closed the lanes leads us somewhere else in the Governors Office [where Mr.

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Stepien once worked], leads us into a political campaign [which Mr. Stepien ran], leads us into

some other area we havent anticipated. (Exhibit 27, Transcript of Jan. 27, 2014 Committee

Meeting, at 21.) He thereafter encouraged state and federal law enforcement authorities to

investigate the matter. If Mr. Stepien has documents responsive to the Subpoena documents

he identifies as relating to the Lane Closures acknowledging their existence, location,

authenticity by supplying them to the Committee would certainly furnish a link in the chain of

evidence that could be used to prosecute him.

2. The Hazards of Incrimination Are Not Trifling or Imaginary.

As shown above, Mr. Stepien is presently ensnared in a wide-ranging investigation

chaired by a legislator who h