02/07/2014 02:47 pm ET Updated Apr 09, 2014

Can The Fifth Protect Bridgegate Emails?

If there are any smoking guns in Bridgegate, they will be found in emails or texts.

Anyone can say anything. Anyone who had access can point a finger directly at Governor Christie or (former) high-ranking officials in his administration and say something implicating about them. If they do, they will face a bruising cross-examination as to the alleged statements to them, as well as their motives for reporting them. For example, do the declarants have a personal vendetta? Or -- strategically -- did they want (or perhaps need) to give investigators or prosecutors reason to grant them immunity or leniency as a means to obtain their testimony? That's what trials and investigations are about -- the motivation, the reason, the "why." As the eminent legal scholar John Henry Wigmore famously expressed, cross examination is "the greatest legal engine ever invented for the discovery of truth."

But when it comes to emails or texts, they tend to speak for themselves. Yes, of course -- everything in life must be viewed in context. But emails -- especially the back and forth, the forever inscribed dialogue -- is where the damage will be done.

And, why should there be any obstacle for prosecutors and the investigating New Jersey legislature from getting them? After all, we've seen Christie's staffs' emails for nearly a month, especially Bridget Anne Kelly's famous "Time for some traffic problems in Fort Lee." And given the barrage of media coverage, most people understand now that Kelly's "traffic problems" email and other offending emails are in the public domain because they were turned over voluntarily, or because they were communicated over the State of New Jersey system. Just as if you work for the phone company or General Motors, or pretty much any company, when you email over the company's system, you don't have an expectation of privacy -- no matter that you may be communicating something particularly private, having nothing whatsoever to do with company business. Same, if you communicate over the government's computer system.

So, and we have no way of knowing at this time, did the Christie folks use private email accounts to communicate "dirty business" about Bridgegate or any of the other related scandals after the scandal became public? Take this hypothetical -- and it is a hypothetical -- let's say Kelly communicated via email or text with another staffer, after her "traffic problems" email went public, but did so over her personal Gmail, Hotmail or some other such private account. If she transmitted it to a Christie staffer on their non-state email account, the investigators simply won't have access to it through the State's production of materials. They would need to get those emails from Kelly herself or her "correspondent," presumably by subpoena. Likewise, if the United States attorney wanted them for his grand jury investigation, he would have to do it the same way -- by grand jury subpoena (unless he employed the more difficult job of getting them through a search warrant.)

So the state legislative committee issued a subpoena duces tecum (seeking documents) directly to Kelly and others. Easy, right? They should now be able to get the emails and texts. But maybe not. Why? Because any individual (but not a corporation or state entity) has a fifth amendment right -- no person "shall be compelled in any criminal case to be a witness against himself." Of course, no prosecutor or state investigating body can compel one to give self-incriminating testimony (without according the witness immunity.) But also, in order to obtain documents from an individual who asserts the fifth amendment, a prosecutor (or investigator) must grant the witness, if he demands it in order to hand over the documents or emails, "Act of Production" immunity. Meaning, if the prosecutor agrees to do that, the prosecutor can never tell a jury who the documents came from, and can only use them at a grand jury or at trial if authenticated by someone other than the one producing them.

And prosecutors are very resistant to granting such an assurance of (what's called) limited use immunity, lest they somehow inadvertently grant broader immunity than intended, or grant broader immunity to a true wrongdoer in an effort to make a case against a more significant target -- a case that perhaps is not there. Yes, it's possible that a witness's lawyer -- maybe Kelly's lawyer -- might try to cut a leniency or immunity deal for her by voluntarily telling the prosecutor about, or even showing him, Kelly's additional personal emails, which might help make his case. Or it may be that another player in the scandal will have his lawyer take that tack. But short of that, the prosecutor will probably be reluctant to grant an immunity that might possibly trump a prosecution (assuming, of course, the conduct in question is actually criminal.)

Remember, though, as people are getting smart about this business -- they communicate their really personal stuff or "dirty business" on an account that that is harder for prosecutors to get hold of -- prosecutors are getting smarter too.

So, no emails with Governor Christie have yet emerged about this scandal (at least publicly), and maybe there are none and never were. But if the question is, "What did he know and when did he know it," do we really need his staff members' "personal" emails? If the prosecutor has not yet subpoenaed the Governor for his emails -- and the Governor would be awfully hard pressed to assert the fifth amendment and still continue as a viable Governor (not to mention as a putative presidential candidate) -- the prosecutor will not only demand the State account; the subpoena will be very explicit. Something like "Any and all emails relating to the GWB lane closings on your State of New Jersey account, and any other email or text (including but not limited to Gmail, Hotmail, AOL, Snapchat or any other account you may have had or had access to during the period from August 1, 2013 to present." In other words, the prosecutor will effectively be saying, "Governor Christie, don't think for a minute that we're asleep at the switch. Just try asserting the fifth amendment to avoid giving us your private accounts."

And by the way, isn't that exactly what Chris Christie would have done when he himself served as United States Attorney for the District of New Jersey?

CORRECTION: A previous version of this post has been revised to provide additional clarification. The post has since been updated to correct this.