U.S. Attorney, Legislature in high-stakes tiff
Inquiry into possible conflicts sparks behind-the-scenes legal fight

Sunday, February 11, 2007 Star-Ledger
 
U.S. Attorney Christopher Christie and state lawmakers are locked in a secret legal battle over his attempts to launch a wide-ranging investigation of the New Jersey Legislature.

The unusual showdown stems from a broad federal subpoena seeking internal memos, e-mails and other records that the Legislature generates each year when putting together the annual budget.

The documents are at the heart of an inquiry by Christie that is focused on potential legislative conflicts, and specifically whether some elected officials steered money to nonprofit organizations or institutions that would have benefited themselves, friends or family, according to four sources with direct knowledge of the investigation.

The U.S. Attorney's office and state legislative officials declined comment. However, The Star-Ledger has learned that both sides will appear before U.S. District Judge Mary Cooper in Trenton on Wednesday to argue whether the Legislature can be forced to turn over records it considers confidential.

The matter is considered secret because it is part of a grand jury proceeding and has been put under seal by Cooper. The courtroom is to be closed and all documents related to the case sealed.

The Legislature's awarding of millions in state grants with little oversight has been drawing increasing attention. This type of spending -- known in New Jersey as "Christmas tree items" -- more than doubled in the past five years, to nearly $350 million. Most of the money has been doled out by the party in power in Trenton, through a largely secretive process.

The subpoena grew out of a criminal probe of Sen. Wayne Bryant (D-Camden), one of the Legislature's most influential members and former chairman of the powerful Senate budget committee.

A federal monitor has accused Bryant of taking a no-show job from the University of Medicine and Dentistry of New Jersey in exchange for funneling at least $12.5 million in public funding to the state institution. Bryant resigned last fall as chairman of the Senate Budget and Appropriations Committee following the uproar over the allegations. He has denied any wrongdoing and has not resigned from the Senate.

COURT ORDER SOUGHT

As part of the federal investigation into Bryant, subpoenas were served in October on the Office of Legislative Services (OLS), the state Senate and the state Treasury Department, attorneys for the Senate Democrats confirmed at the time.

The subpoenas served on the Senate and the Treasury Department sought budget-related documents, which were soon produced. However the demand for documents from the OLS was not limited to Bryant, according to legislative sources, but requested any pertaining to conflicts of interest for lawmakers and staffers.

In addition to serving as the nonpartisan research and operations arm of the Legislature, OLS also acts as counsel to the Legislature and its members.

OLS opted not to respond to the request, prompting the U.S. Attorney's Office to seek a court order directing the legislative office to turn over the records.

In legal papers described to The Star-Ledger, the Legislature argued the records are protected by attorney-client privilege. The sources spoke only on the condition of anonymity because the case is under seal.

The Legislature will contend that lawmakers must have the right to seek and receive confidential guidance in order to stay within the law. Federal authorities maintain that government attorneys work for the public, not government officials, so any documents generated by them are not protected by the well-established privilege.

HIGHLY UNUSUAL

Alan Rosenthal of Rutgers University, an expert in legislative ethics, said he could not recall a similar case anywhere in the nation.

"I think most subpoenas for legislative documents are usually for individuals," said Rosenthal, a professor of public policy at Rutgers' Eagleton Institute of Politics. "I know of federal stings that have occurred in other states, but a blanket subpoena is unusual."

Public records show the Legislature has retained outside counsel to represent its interests in the matter. According to a Jan. 18 agreement, Newark attorney Edward Dauber has been hired to represent the Legislature in connection with a "subpoena from United State's Attorney's Office."

Dauber is a former assistant U.S. attorney and has served as the executive assistant state attorney general. He is charging the Legislature $275 an hour, which goes up to $300 an hour for court time.

OLS Executive Director Albert Porroni declined to comment on the retainer or the legal maneuvering.

Legal experts say the case revives some of the attorney-client privilege arguments made during the investigation of President Bill Clinton by independent counsel Kenneth Starr. The confrontation also raises constitutional issues regarding the separation of powers between the executive, legislative and judicial branches of government -- questions still being debated in the wake of last year's federal warrant that allowed the FBI to search the congressional offices of Rep. William J. Jefferson (D-La.).

John Leubsdorf, an expert on legal ethics at Rutgers School of Law in Newark, said there is case law that goes both ways on whether government officers can have privileged communications with government attorneys.

At the same time, legislators cannot claim an immunity under the separation of powers rules in the case of criminal behavior, he said.

And while the statutes in New Jersey specifically exempt legislative correspondence from public scrutiny, the fight is taking place in federal court under federal rules in a criminal matter.

Brenda Erickson, senior research analyst at the National Conference of State Legislatures, said claims of confidentiality or separation of powers legislatively are usually decided on a case-by-case basis.

"It's a gray area," she said.