Why the Mastro report is becoming a nightmare for Gov Christie
Hiring Randy Mastro's team of lawyers to conduct an internal investigation into the Bridgegate scandal gave Christie a report exonerating him of all wrongdoing. He used it last month to restart his sputtering quest for the 2016 GOP presidential nomination and hold onto his chairmanship of the Republican Governors Association.
The 75 interviews that were conducted also gave Christie's lawyers a chance to grill potential witnesses before they are called in by the U.S. Attorney's Office or the Legislature's Select Committee on Investigation, which could have a chilling effect on their testimony if they worry that it might be different from what they told the Mastro team.
However, polls show that most New Jerseyans regard the Mastro report as a "whitewash." The inquiry verified that the governor's office punished mayors who did not support Christie, and that a staff filled with former federal prosecutors failed to properly investigate Bridgegate. Most important, interview memos released Monday showed that the Mastro investigation ignored evidence that bolstered Hoboken Mayor Dawn Zimmer's claim that she was threatened with the loss of Sandy aid, and provided investigators with new witnesses to interview and questions to ask.
Overall, experts said, the Mastro report is proving to be a political, legal and public relations nightmare for Christie, who should have known better than to authorize such an inquiry after serving seven years as U.S. Attorney.
"It seemed crazy to me to do what they did," Robert Del Tufo, a former New Jersey Attorney General and U.S. Attorney, said of Christie's decision to commission an internal investigation. "They spent over a million dollars of taxpayer money. It's unusual in an internal investigation not to take down transcripts of what people said, and presumably they just summarized things so they could put a slant on what people said.
"The purpose was for Mastro to say the governor didn't do anything wrong. But regardless of the legalities, they must have known there would be a demand for the underlying documents. To refuse to produce them would be a public relations nightmare," Del Tufo said. Considering the legal and political complications, he said, "I don't know if I would have done the report in the first place."
The release of the interview memos Monday established for the first time that Community Affairs Commissioner Richard Constable discussed both the controversial Rockefeller Group high-rise project and Sandy aid with Hoboken Mayor Dawn Zimmer at the time and place she said they did -- a fact that probably would not have come out until after the U.S. Attorney's Office finished its investigation a year from now, or perhaps not at all.
Interview memos with Constable, Lt. Gov. Kim Guadagno, and other officials contained numerous important details that they left out of their vehement public denunciations of Zimmer's allegations in January, bolstering the credibility of Zimmer's story that the Christie administration tied Sandy aid to the approval of a high-rise development represented by Christie ally David Samson.
The Mastro report's omission of those details and refusal to consider interpretations of the evidence that supported Zimmer's story raised additional questions about the impartiality of the internal investigation.
Reward and Punishment
The memos provided additional evidence that the governor's office rewarded and punished mayors based on their support for Christie's reelection, showing that the George Washington Bridge lane closures may not have been an aberration.
The memos showed that Christie was fully aware that Bridgegate posed a serious threat to his presidential hopes a month before Deputy Chief of Staff Bridget Kelly's "time for some traffic problems in Fort Lee" email became public.
Finally, the memos provided a roadmap for federal and state investigators to follow, including new leads and critical witnesses who were not among the 28 officials from the Christie administration, reelection campaign, and Port Authority whose documents were subpoenaed by the Select Committee on Investigation at the end of January.
"The Mastro report raised more questions than it answered about what is going on in the Christie administration," Patrick Murray, director of the Monmouth University Polling Institute, noted. "Now, the release of the memos has raised even more questions, including questions about the credibility of the Mastro report itself."
Murray said he could not imagine what Christie and his top advisers were thinking when they settled on their current legal and political strategy. "Every time they put something out, they undercut their credibility," he said. "Everything they do provides fodder that keeps this investigation alive and keeps this story alive. The report was overly protective of the governor, and now everyone is looking through the memos to see what the report left out. Nothing gets settled, everything looks worse."
A Quinnipiac Poll released last week showed that 56 percent of New Jerseyans regarded the report as a "whitewash" and only 36 percent believed it to be a "legitimate investigation." Even more ominously, 65 percent of voters knew of the Hoboken case, and 57 percent of that group believe Zimmer's allegation that the Christie administration improperly withheld Sandy aid from her city because she refused to support the Rockefeller Group development.
Murray said he expected to see similar results in his next Monmouth Poll. "It will be negative. This is not going to be positive," Murray stated emphatically, asserting that the controversy over the Mastro report clearly resonated with voters. "The question now with Christie is, 'Have we hit a floor where a certain percentage of people will defend him no matter what, and everyone else will attack him?'"
The decision by the Mastro team not to place the 75 interviewees from the governor's office and reelection campaign under oath, and not to tape or make exact transcripts of their interviews, limited their usefulness to investigators.
But it is unclear whether Christie and Mastro expected to have to surrender the interview memos written by Mastro's team of lawyers from Gibson, Dunn & Crutcher when Mastro issued his exculpatory report that read more like a defense brief than an investigative report.
Each of the 75 interview memos opens with the explanation that "This memorandum does not contain a verbatim transcript of what was said at the meeting; rather, it is a summary of the discussion that reflects counsel's mental thoughts and impressions and is therefore covered by the attorney work product doctrine."
The attorney work product doctrine is used by lawyers to protect written or oral memos or materials from being subject to normal rules of discovery or compelled disclosure in litigation, but it is unclear whether Christie and Mastro assumed that the interview memos would be protected by this privilege and not subject to subpoena by the legislative committee or the federal grand jury that U.S. Attorney Paul Fishman has convened.
Maria Comella, Kevin Roberts and Michael Drewniak in the governor's press office did not respond to emailed requests for comment from Mastro or the governor's office on the issue of whether the attorney work product doctrine could have been used to protect the memos from public disclosure.
However, Del Tufo, the former U.S. Attorney and state attorney general, said he believed the interview memos "implicitly would be public information paid for with public funds, and I think investigators could get the memos with a subpoena."
A Noon Deadline
Assemblyman John Wisniewski (D-Middlesex) and Senate Majority Leader Loretta Weinberg (D-Bergen), the cochairs of the Select Committee on Investigation, were prepared to issue a subpoena for the interview memos if Mastro and the governor's office did not hand them over to the committee by the Monday noon deadline they had set.
The decision by Christie and Mastro to turn over the interview memos, like their earlier decision to comply with the legislative committee's subpoena, once again averted a constitutional showdown, but politically Christie had little choice. It would be difficult for Christie to invoke executive privilege to refuse to comply with a legislative investigative and remain chairman of the Republican Governors Association and a second-tier contender in the GOP presidential sweepstakes he led before Bridgegate.
Christie and Mastro could have had an ulterior reason for wanting to make the interview memos public, which they did by posting them on the Gibson, Dunn & Crutcher website.
"Summarizing the alleged statements of others might have a chilling effect on people when they want to testify," Del Tufo pointed out. "Perhaps what they (the Mastro team) have in the back of their minds is to put one of their lawyers on the stand as a witness to say, 'That's not what this person said when I interviewed him,' if the testimony diverges from what's in the interview memo."
Del Tufo noted that Mastro and his lawyers met with key witnesses in the Zimmer case several times, apparently pushed them hard, and "may have weakened the testimony of some of these witnesses."
He specifically cited the case of Luciana DiMaggio, Guadagno's young aide who accompanied her to the May 13 opening of a Hoboken Shop-Rite where Zimmer alleged that the lieutenant governor threatened to withhold Sandy aid if she did not push through the Rockefeller Group high-rise project.
DiMaggio, who is just two years out of college, was interviewed three times by Mastro and two other lawyers. The first two interviews on January 23 and 27, she was alone, and at her final interview on March 10 she was represented by a lawyer.
"If you heard about this witness DiMaggio, she seems to have backtracked a little by saying she's not sure," Del Tufo said. "But it was pretty damning what she said the first time."
On Saturday, January 18, after Zimmer appeared on MSNBC's "Up With Steve Kornacki" and charged that Guadagno had transmitted a threat from Christie to withhold Sandy aid if she did not push through the Rockefeller Group project, Melissa Orsen, Guadagno's chief of staff, called DiMaggio to ask her what she remembered about the confrontation in the parking lot that followed the Hoboken Shop-Rite tour.
DiMaggio said she was standing 15 to 20 feet away from Guadagno and Zimmer, and that the two had a "tense conversation" for about five minutes, that "they were discussing something intently," that "they were not laughing and their faces seemed serious." She told Mastro's lawyers that Guadagno then got in the Suburban with her and an unnamed trooper, and "the lieutenant governor said in the car after the Shop-Rite tour something like if Mayor Zimmer didn't play ball then there's not much we can do."
Orsen, who was interviewed four times, told the lawyers that DiMaggio said "the lieutenant governor got back in the suburban and said that she had to be firm and tell Mayor Zimmer to 'play ball.'" When Orsen asked DiMaggio if she were sure, "DiMaggio said she could not be 100 percent certain that that was what the lieutenant governor said, but that the phrase stuck in her head."
Orsen provided Mastro's lawyers with notes she took during her call that said DiMaggio was not "100 percent sure."
Even at her third interview with her lawyer present, DiMaggio "remembered that the lieutenant governor communicated that she was frustrated with Mayor Zimmer. With her counsel present, DiMaggio said her memory is not 100 percent accurate, but she remembered that the lieutenantgovernor communicated to her that Mayor Zimmer was not cooperating, stating in words or in substance something like the mayor was not playing ball or the mayor was not playing well with others."
The Mastro report left out DiMaggio's initial recollection that Guadagno said "if Mayor Zimmer didn't play ball then there's not much we can do," and used the not "playing ball" or "playing well with others" line. It then concluded that "DiMaggio's recollection is consistent with the lieutenant governor's recollection of pushing back against the mayor's insistence on getting more Sandy aid for Hoboken without regard to the profound needs of the entire state."
That conclusion, of course, doesn't fit nearly so well with DiMaggio's initial recollection, which actually fits more neatly with Zimmer's contention that if she didn't support the Rockefeller Group high-rise, there wasn't much the Christie administration would do about getting her city the Sandy aid to which it as entitled -- and which it was indeed shortchanged.
The Mastro report's selective use of the DiMaggio interview memo in its final report pales in comparison to its failure to include key material from the interview memos with Community Affairs Commissioner Richard Constable and Belmar Democratic Mayor Matthew Doherty concerning Zimmer's conversation with Constable at a Sandy aid forum at Monmouth University three days later.
The Mastro report went to great lengths to establish that Constable could not have repeated Guadagno's threat to withhold Sandy aid if she did not support the Rockefeller Group project. "It strains credulity to think that a threat tying Sandy aid to a private development project would be made while on a public stage" with Doherty and Murray sitting on either side of them.
In a section cited "An Independent Witness Contradicts Mayor Zimmer's Account," the Mastro report cited Doherty, who has repeatedly expressed his appreciation for Christie's support for rebuilding Belmar, as saying "he did not hear Commissioner Constable say anything about any quid pro quos or make any threats."
That would be devastating to Zimmer's case -- except that the Mastro report's nine-page section declaring that "Mayor Zimmer's Allegations About Commissioner Constable Do Not Withstand Scrutiny" completely left out the fact that both Doherty and Constable told their lawyer interviewers that Constable and Zimmer discussed both the Rockefeller project and Sandy aid on stage.
According to the Doherty interview memo, "Doherty explained that Constable and Zimmer had indeed discussed both economic development and Hoboken's multimillion-dollar hazard mitigation proposal. Doherty stated that he remembered the cost of the mitigation project because it was so large in comparison to Belmar's small request."
Doherty, who was interviewed by phone by Mastro four times and spent considerable time discussing what he would be comfortable saying publicly, insisted that "Constable never implied that there was quid pro quo. "But his recollection of the conversation is much less detailed than Constable's, showing he may have missed some of it.
"Constable recalled that Mayor Zimmer said something about moving forward with the Rockefeller project," the Constable interview transcript noted. "Constable believed she used the word Rockefeller, but was not sure. In response, Constable recalled generally saying something to the effect that he did not think she was in favor of commercial development. Constable recalled generally that Mayor Zimmer responded that she was in favor of commercial development in Hoboken."
"Constable recalled that he offered to set up a meeting with Tony Marchetta, the executive director of the New Jersey Housing and Mortgage Finance Agency, and Michele Brown, the head of the Economic Development Authority, to discuss commercial development in Hoboken. Mayor Zimmer replied something along the lines of that would be great," the memo noted.
Constable's remark questioning whether Zimmer was "in favor of commercial development" -- which is Guadagno's principal mission as lieutenant-governor -- may very well have been prompted by an earlier meeting Constable attended with Zimmer and Department of Environmental Protection Commissioner Bob Martin in Trenton two months earlier to discuss the Hoboken flood mitigation plan that had been designed by the Rockefeller Group.
According to the Constable interview memo, "Following Constable's March 5, 2013 meeting with Mayor Zimmer and DEP, Martin subsequently joked about the irony of Mayor Zimmer talking about development -- suggesting something along the lines of, in a joking manner, Mayor Zimmer was part of the 'Birkenstock' crowd of folks typically not in favor of development."
The view of Zimmer as anti-development was widespread within the Christie administration. Chief Counsel Charles McKenna, who never even met Zimmer, understood from the weekly Sandy working group meetings in the governor's office that "Mayor Zimmer was not necessarily the easiest person to deal with" and he "understood that there was some redevelopment project in Hoboken that Zimmer was on the fence about," McKenna's interview memo reported.
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