Bridge scandal: Could Chris Christie face criminal charges?

While Gov. Chris Christie defended himself at a press conference Thursday, the US attorney for New Jersey announced he's looking into whether the closure of lanes leading to the GW Bridge violated any federal laws.

It was 8:50 a.m. Wednesday morning, just after his personal trainer left, when New Jersey Gov. Chris Christie (R) says he first heard that his staff had indeed orchestrated a gleeful political payback against the Democratic mayor of Fort Lee.

Governor Christie, the former US attorney for the District of New Jersey, mentioned this precise time on at least five occasions during his nearly two-hour-long press conference Thursday. It was a day after he left this workout, canceled his Wednesday appearances, and went into full crisis-management mode with members of his staff.

But just as he was answering America’s most famous scandal-related question – “What did you know, and when did you know it?” – Paul Fishman, the current US attorney for the District of New Jersey, announced that he was looking into whether the closure of lanes leading to the George Washington Bridge violated any federal laws. The matter had been referred to him by the inspector general of the Port Authority of New York and New Jersey, the agency that runs the bridge.

The cover that Christie’s aides used for the “traffic study” to close Fort Lee’s highway access lanes was ostensibly a $60,000 traffic-study grant that the Port Authority gave to Springfield Township, a small town of 14,000 residents 30 miles away from Fort Lee. Incidentally, the Democratic mayor of Springfield – which is half the size of Fort Lee and not in the shadows of one of the most important access arteries into Manhattan – also did not endorse Christie at the time.

But legal experts and former federal prosecutors doubt whether any specific criminal charges could come from the growing scandal – at least on a federal level. Despite the big political fallout that the scandal may cause – as well as a likely deluge of civil lawsuits – proving any criminal wrongdoing might be a stretch.

“It’s not obvious what laws may have been broken,” says Stuart Green, law professor at Rutgers School of Law-Newark in New Jersey. “I mean, there was undoubtedly an abuse of power, but in the federal context, there’s no general prohibition on abuse of power.”

The essence of this abuse of power, and the tertiary role of Christie, are suggested by the e-mails between Bridget Anne Kelly, the governor’s deputy chief of staff; and David Wildstein, then director of interstate capital projects for the Port Authority. He was a high school classmate whom Christie appointed to the post – and who many say was the governor’s eyes and ears in the agency.

“We are ready to do this, can you have someone call the Mayor of Springfield and tell him that Gov has approved $60k for their traffic study,” Mr. Wildstein e-mailed Ms. Kelly on Sept. 6, 2013. That same day, Wildstein ordered Robert Durando, the George Washington Bridge's general manager, to close two of the three lanes connecting Fort Lee to the bridge. Three days later, on the first day of school in Fort Lee, the lanes were closed.

The mayor of Springfield, however, was not informed that the governor had approved the $60,000 traffic study until November, after Christie had been reelected and news of the scandal began to emerge. Since then, Wildstein resigned in December, and Kelly was fired Thursday.

“I think you’re going to have to do a little bit of imaginative work with the criminal statutes to turn this into a crime,” former US Attorney Frank Tuerkheimer, who served as an associate special prosecutor in the Watergate investigation, told Salon. “You know, criminal statutes have to be interpreted narrowly; you can’t just extend them beyond their wording. And frankly I can’t think of a statute which makes political retaliation per se a crime. I mean, that happens all the time: Somebody gets [annoyed with] someone because they didn’t support them and they retaliate. I don’t think that’s per se criminal.”

In the past, prosecutors might have been able to use federal mail and wire fraud statutes – especially its catchall section called “honest services fraud,” which provided penalties for public officials who deprived citizens of rightful “honest services.” In fact, Christie relied on this section of federal mail-fraud statutes when he was US attorney, using it successfully against many of 130 public officials during his tenure – most of them Democrats.

But in 2010, the US Supreme Court unanimously ruled “honest services” overly vague, saying a specific bribe or kickback must be involved for conviction.

“The harder issue is that nobody really profited from this,” Professor Green says. “It was done for political spite, and political spite isn’t something that gives rise to fraud.”

But others have since dusted off New Jersey’s “official misconduct” law, which some legal experts say could apply in this case. The law states that a public official is guilty of official misconduct when he or she commits "an unauthorized exercise of his official functions ... with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit.” The same would apply for refraining from performing a required public service.

New Jersey also has a number of ethics rules that apply to state employees, prohibiting them from engaging in political activity that conflicts with their official duties. “But can a deliberately orchestrated traffic jam be considered political activity?” says Noah Weisbord, associate professor of law at Florida International University in Miami.

The governor is likely, however, to face a deluge of civil suits, and six New Jersey residents caught in the traffic jams have filed a class-action lawsuit in federal court against Christie, saying the scheme was a “conspiracy” and “willful, wanton, arbitrary, and egregious official misconduct.”

But like Watergate, any kind of coverup that comes to light may prove more serious than the payback scheme itself. Wildstein invoked his Fifth Amendment rights Thursday after being subpoenaed by the state assembly, and Christie has “disassociated” himself from a number of aides.

“To the extent that somebody may have destroyed an e-mail or lied to investigators, there’s always the possibility of a perjury or obstruction-of-justice prosecution,” Green says.

“I think he’s playing with fire,” he continues, referring to Christie’s razor-specific what-and-when moment of knowing about the scheme. “He is going out on such a limb in claiming that he knew nothing about this, I don’t see that he has any space for deniability now. If anything turns up, if anybody cooperates with the government, if any of these people who have been thrown under the bus now are willing to cooperate with the government and they can show that he had some knowledge of this – I don’t see how he could survive that.”

“It’s hard to know where this is going to lead,” he says. “It’s hard to believe that this is the end of it.”