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203722789-2014-01-31-Letter-to-Reid-J-Schar

203722789-2014-01-31-Letter-to-Reid-J-Schar

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Published by Becket Adams
203722789-2014-01-31-Letter-to-Reid-J-Schar
203722789-2014-01-31-Letter-to-Reid-J-Schar

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Published by: Becket Adams on Jan 31, 2014
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02/01/2014

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M RINO
TORTORELL
BOYLE
P.C.
KEVIN H.
MARINO JOHN
D.
TORTORELLA*+
JOHN
A.
BOYLE
ROSEANN
BASSLER
DAL PRA
ATTORNEYS
AT
LAW
437
SOUTHERN
BOULEVARD
CHATHAM. NEW
JERSEY
07928-1488
TELEPHONE
(973)
824-9300
FAX
(973)
824-8425
January 31,2014
VI EM IL ND REGUL R M IL
Reid
J.
Schar, Esq. Jenner Block 353
N.
Clark Street Chicago, IL 60654-3456 Re:
New Jersey Legislative Select Committee on Investigation Subpoena Issued January
27
2 14 to William Stepien
Dear Mr. Schar:
• ALSO ADMITTED IN NEW YORK
ALSQ
ADMITTED
IN
PENNSYLVANIA
e-mail: kmarino@khmarino.com
As you know, we represent Bill Stepien, to whom the New Jersey Legislative Select Committee on Investigation (the Committee ) has issued a subpoena demanding the production
of
documents and things (the Subpoena ). For the reasons set forth below, the Subpoena, a copy
of
which is attached to this letter as Exhibit A, violates Mr. Stepien's rights under
the
Fifth Amendment to the United States Constitution; New Jersey's common law privilege against self-incrimination; the Fourth Amendment to the United States Constitution; and Article
I
paragraph 7
of
the New Jersey Constitution. Accordingly, while we are mindful
of
the importance
of
the Committee's work, we write to record our timely objection to the Subpoena, which is returnable Monday, February 3, 2014, and to respectfully request that it be withdrawn. I will make myself available to discuss this matter with you and the members
of
the Committee at your convenience.
OVERVIEW
In invoking the Fifth Amendment and its state law analogue, Mr. Stepien relies
on
the settled but underappreciated principle that, as the Supreme Court has emphasized, one
of
the
 
M RINO
TORTORELL
S
BOYLE
P C
TTORNEYS
T
L W
Reid
J.
Schar, Esq. January 31, 2014 -Page 2 Fifth Amendment's 'basic functions is to protect innocent men who otherwise might
be
ensnared by ambiguous circumstances.' Ohio
v.
Reiner, 532 U.S. 17,
21
(2001) (quoting Grunewald
v.
United States,
353
U.S. 391,
421
(1957) (internal quotation omitted)). That is because,
as
the Court has explained, truthful responses
o
an innocent witness, as well
as
those
o
a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth. Reiner, 532 U.S. at 21. The potential for
Mr.
Stepien's ensnarement in the ambiguous circumstances that led to the Subpoena's issuance is undeniable in this case, where a legislative investigation continues to unfold even as a federal grand jury investigation into the same subject matter -allegations
o
illegality in connection with, inter alia, lane closures at the George Washington Bridge last September -is being conducted by the United States Attorney for the District
o
New Jersey.
Mr.
Stepien has not been subpoenaed as part
o
that criminal probe and maintains his innocence
o
any wrongdoing, criminal or otherwise. But the very real possibility that his act
o
producing documents and things responsive to the Subpoena might compel him to furnish a link in the chain
o
evidence that could be used to ensnare him in the ambiguous circumstances
o
a criminal prosecution -and thus force him
to
become a witness against himself, in violation
o
his fundamental right against self-incrimination -is a more than compelling reason to withdraw that instrument.
So
too
Mr.
Stepien's fundamental right to be free from unreasonable searches and seizures, which is enshrined in the Fourth Amendment to the United States Constitution and, even more expansively, in Article
1
paragraph 7
o
the New Jersey Constitution.
In
invoking
 
MARINO
TORTORELLA
BOYLE P e
ATTORNEYS
AT
LAW
Reid
J.
Schar, Esq. January 31,2014 -Page 3 that right -which protects the pnvacy interests
of
ilIDocent persons just
as the
Fifth Amendment and our state's common law safeguard the innocent from self-incrimination -Mr. Stepien does not challenge the Committee's power to perform its investigative function. In exercising that power (and, in particular, in exploring the circumstances surrounding the George Washington Bridge lane closures, which led to its creation), the Committee has demanded the production
of
documents from a broad array
of
entities and individuals. (Exhibit
B
The Washington Post, Flurry
of
subpoenas in New Jersey Bridge Flap, January
17
2014.) But
Mr.
Stepien must insist that, at least where he
is
concerned, the Committee's power be deployed in a manner that accords with the constitution and laws
of
the United States and the State of New Jersey. That insistence
is
particularly prudent in light
of
the announcement made weeks ago by Assemblyman John Wisniewski, who headed the Assembly committee originally conducting this investigation and continues his leadership role in the joint Committee, that laws have been broken in connection with the lane closures. (Exhibit
C
CNN, NJ Democrat lawmaker on traffic scandal:
I
do think laws have been broken,' Jan. 12,2014.) Bill Stepien has not broken any laws. He is one
of
the most well respected political consultants in America. Indeed, as
is
now widely known, he was poised to become Chairman
of
the New Jersey Republican Party and had already been retained as a consultant to the powerful Republican Governors' Association when he was summarily disqualified from both positions following the publication
of
two email exchanges he had with executives
of
the Port Authority. Those exchanges, both
of
which concerned newspaper articles that appeared after the bridge-lane closures, do not suggest that Mr. Stepien conceived or authorized the lane closures. Yet
in
the

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