RUTHFULLY YOURS

http://www.nationalreview.com/node/419723/print

The headline blared, “Ex-Official Says Chris Christie Broke Grand Jury Law.” It is the latest hit piece from the New York Times against the Republican governor of New Jersey and putative presidential candidate. Not surprisingly, it was quickly picked up across the mainstream press.

Readers of my columns may recall that I am not exactly an ardent Christie fan. That said, the Gray Lady’s accusation that the governor violated federal grand-jury-secrecy law is campaign-season hyperbole, not news reporting. It is also rich coming from the Times, which tends to lionize leakers of confidential government information. On West 41st Street, any scrap metal left over when the Christie handcuffs are finished will surely be molded into a trophy for Edward Snowden.

But the Times can afford to be cavalier about accusing the governor of lawlessness. After all, that’s not the real point of the story. The point is to rot Christie’s presidential timber: his claim of executive competence. To the extent the Times succeeds on that score, the governor has no one to blame but himself.

Christie’s latest mess stems from his opportunistic use of patronage to clear the path for Republicans to win a coveted elected position in Passaic Country and deprive Democrats of a flush campaign kitty. In a nutshell, it is alleged that, in 2010, the governor awarded a plum Port Authority (PA) job to a popular three-term sheriff of Passaic County in exchange for that sheriff’s agreement not to seek reelection. The sheriff, in addition, donated his flush $600,000 campaign account to charity, thus depriving other Democrats of its use.

We’ll get to the unseemly details in due course. First, though, let’s cut to the chase on the Times’ allegation that Christie broke grand-jury law.

In order to open up the PA slot for Passaic Sheriff Jerry Speziale, Christie ordered his top PA appointees, Bill Baroni and David Wildstein, to fire Arthur Cifelli, who was then the PA’s public-safety director as well as the No 2. official in its police department. In explaining his rationale for the firing, Christie harked back to his term as United States attorney for New Jersey and, by the Times’ lights, violated federal law.

The newspaper includes an account of the episode that Wildstein recently provided in connection with a civil lawsuit:

Christie also told Wildstein and others that he knew of Cifelli from his service as U.S. Attorney because Cifelli had perjured himself during his testimony in Grand Jury proceedings related to John Lynch and that his office had considered prosecuting Cifelli for perjury. Christie made it clear that he would not have Cifelli working for his administration.

This is thin gruel on which no sensible federal prosecutor would base a criminal charge.

Christie has not been the U.S. attorney since 2008, when he resigned after seven years to run for governor. Therefore, it is not at all clear that the duty of grand-jury secrecy still applies to him — at least as a matter of law. (Arguable ethical lapses are not grounds for prosecution.) As relevant here, federal criminal procedure rule 6(e) imposes the secrecy obligation on “an attorney for the government,” which rule 1(b) defines as a current federal prosecutor (the attorney general, Justice Department attorneys, U.S. attorneys, assistant U.S. attorneys, etc.). Once a lawyer has retired from the prosecutor’s office, the rules do not appear to impose a continuing duty to maintain the secrecy of grand-jury matters learned while he was a prosecutor.

Should such a duty be tacitly assumed? Doubtful. It is black-letter law that criminal statutes must clearly spell out the conduct proscribed. More to the point, while investigative imperatives — e.g., promoting witness candor, preventing the flight of potential defendants — have been held to justify grand-jury secrecy rules despite free-speech principles, those imperatives are of diminishing importance as time passes. Consequently, the Supreme Court explained in its 1990 Butterworth v. Smith ruling that the duty to maintain secrecy may end once the grand jury closes its investigation.

If there really was a Cifelli perjury investigation, it ended without charges long before Christie became governor. So the Times is on rickety legal ground, to put it mildly, in accusing Christie of committing a crime. Now, let’s turn to the factual context, since prosecutors are always mindful that criminal cases are tried to juries — ordinary Americans who are unlikely to convict someone on a dubious legal theory if the facts are on his side.

Christie did not broadcast to the world that Cifelli was a perjurer. Instead, as the chief executive of a state government, he informed four close subordinates at a private meeting in his Trenton office that he did not want someone he believed to have lied to a grand jury serving in his administration.

And who were the four subordinates? They were officials who either had a need to know or already knew the governor’s reasoning: the two top PA officials who would have to do the firing; Christie’s then chief of staff Richard Bagger, with whom he had executive privilege to communicate confidentially about personnel matters; and Christie’s longtime aide Michele Brown, who had served as Christie’s counsel and executive assistant when he was U.S. attorney and would surely have participated in the office’s deliberations over whether to indict Cifelli for perjury.

In short, the allegation that Christie committed a federal crime by revealing grand-jury matters is bogus. And you know as sure as you are reading this that if, say, John Kerry or Eric Holder were the name of the former prosecutor caught blurting out grand-jury information to a handful of staffers, the Times would be telling you what I’ve just told you. Anyone who suggested inflating such a minor indiscretion into a criminal prosecution would be maligned as a wild-eyed birther.

But again, the allegation that Christie violated the law is not the point of the Times report.

The central player in the story is Wildstein, who also just happens to be the central player in the “Bridgegate” scandal. By his own account, Wildstein is the PA official who arranged the infamous traffic snarl in Fort Lee, the western terminus of the George Washington Bridge. Wildstein says he acted at the direction of top Christie operatives who were punishing Fort Lee’s mayor for refusing to endorse Christie’s 2013 reelection bid. Why? Because the mayor is a Democrat; the governor was already planning a 2016 presidential run that would tout his credentials as a bipartisan problem solver; and Christie’s staff was determined to collect Democratic endorsements. (Christie, it should be noted, vigorously denies complicity in the Bridgegate scheme, and the Justice Department has not charged him in its indictment.)

One of the Christie operatives Wildstein says he took orders from was none other than Bill Baroni — who just happens to be the other PA official at the meeting in which Christie accused Cifelli of grand-jury perjury. Last month, Wildstein pled guilty to two conspiracy charges in the federal Bridgegate prosecution. Baroni has been indicted in the case, as has Bridget Anne Kelly, another top Christie staffer.

And then there is Michele Brown, who (as noted above) was also at the meeting where Christie spilled the grand-jury beans. She left the U.S. attorney’s office to work on her boss’s 2009 gubernatorial campaign. Alas, she was forced to resign when it emerged that, while he was U.S. attorney, Christie and his wife loaned Ms. Brown and her husband $46,000 (a formal ten-year loan on 5.5 percent interest that was duly recorded in a municipal office). Exhibiting what he later conceded was poor judgment, Christie failed to disclose either the loan or the monthly interest payments on his tax returns and financial-disclosure forms. (He also promoted his subordinate while she was paying off the loan.)

Finally, there is the situation that actually prompted Cifelli’s termination. It is not as if Christie was so offended by the prospect of a purported perjurer working in his administration that he ordered Cifelli’s immediate firing. He was obviously content to let Cifelli fill not one but two critical PA posts for the first six months of his term. It was only when Christie needed those slots for a purely political transaction that Cifelli had to go.

That transaction was the luring of Jerry Speziale away from his elected position as Passaic sheriff. According to Wildstein, Christie told his subordinates at the Trenton meeting that “he wanted to get Speziale to drop his re-election bid to help Republicans win the post, and to take Speziale’s campaign war chest out of the race.” In other words, the PA job was exactly the sort of grimy political exchange Christie often portrays himself as being above: He fired a top political appointee because he needed something valuable to trade, and he rationalized the politically driven firing as righteous comeuppance for a perjury offense that Christie never actually charged.

In resigning, Speziale told Passaic residents that the new state job would allow him to spend more time with his ailing wife. It must have. The PA post sounds critical and paid a cool $199,000 per year. Yet, experts who were retained to conduct a review of Port Authority security recommended its elimination. And Speziale ended up suing the PA over what he claims is its retaliation against him for trying to do the anti-corruption job he was ostensibly hired to do.

It is in connection with that lawsuit that Wildstein has provided the account of the Trenton meeting that is now causing Christie such headaches. Wildstein, who is cooperating with federal prosecutors in the Bridgegate investigation (and who claims Christie knows more about it than he is letting on), is a defendant in Speziale’s lawsuit against the PA. Christie left it to Wildstein — the governor’s former high-school mate — to recruit and hire Speziale, who says he was told that his main job would be to root out corruption at the PA. Yet, when he did try to expose it, he says no one at the PA wanted to know about it. In fact, he claims that the PA retaliated against him in petty ways — denying him entry to secure PA facilities and medical benefits for his wife, who is terminally ill.

Of course, Christie’s right- and left-hand men, Wildstein and Baroni, appear to be the poster children for corruption at the PA.

The Times is not going to get Chris Christie for violating grand-jury secrecy. But they’ve found a scoop that will keep the Bridgegate story churning at a time when Christie is desperate to put it behind him. It is a scoop that draws attention, yet again, to questions about Christie’s judgment in the people he hires and the way he runs his office. It is a scoop that catches the governor practicing crass revenge-reward politics in a very hands-on way, and in cahoots with some of the same close aides who pulled the traffic stunt that was itself a fairly moronic — and it turns out, criminal — adventure in political spite.

The field of GOP 2016 hopefuls is chock-full of elected politicians. The governors like to brag that they are better qualified than the senators because, like presidents, they are chief executives who have actually run things. Maybe . . . but there is the little matter of how they’ve run them.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.