Aiming to get to the bottom of the developing bridge scandal emanating from New Jersey Gov. Chris Christie (R), the New Jersey State Assembly called Christie appointee David Wildstein to testify Thursday. Wildstein, a high school classmate of Christie’s who stepped down as director of interstate capital projects for the Port Authority of New York and New Jersey in December, invoked his Fifth Amendment right to remain silent, prompting the the legislature to hold him in contempt.
Wildstein’s silence on even the most basic questions has led many to conclude that he has something to hide. But guilt or innocence notwithstanding, what of Wildstein’s constitutional rights? Can he be held in contempt for staying silent? In all likelihood, Wildstein will not ultimately be convicted, given the extensive protection of the Fifth Amendment.
The Fifth Amendment right against self-incrimination is very, very broad. It gives individuals the right not to say anything that might be used against them in a criminal trial, and it applies in legislative hearings as well as court proceedings. The U.S. Supreme Court has long held that the right must be interpreted liberally to encompass any conduct that could be used against a person. In legislative proceedings, lawmakers can get around this guarantee if they can arrange immunity for the person testifying. But there’s only so much immunity a state legislature alone can grant.
In Wildstein’s case, he invoked the right under both the U.S. and New Jersey constitutions and refused to answer a question about where he was most recently employed followed by many, many others. Lawmakers warned that his failure to answer would require them to hold him in contempt, citing a New Jersey provision that goes so far as to state, “No such witness shall be excused from answering any such questions on the ground that to answer the same might or would incriminate him.” That provision claims, “no answers made by any witness to any such questions shall be used or admitted in evidence in any proceeding against such witness, except in a criminal prosecution against the witness for perjury in respect to his answers to such questions.” In other words, we will protect your statements from criminal proceedings, but in exchange, you must answer our questions or face contempt.
Reading the statute alone, one might think that invoking the Fifth Amendment was no protection for Wildstein. But all that statute does is trigger the legislature to initiate a contempt proceeding against Wildstein. That charge will now be forwarded to a county prosecutor, and if the prosecutor pursues the charge, Wildstein will have a chance to defend it before a judge.
In his defense, Wildstein’s lawyer Alan Zegas will likely point out that this statute does not provide full constitutional protection. For one thing, the provision addresses only state protection, and Wildstein could be subject to federal charges. For another, a guarantee by the legislature is not the same as a guarantee by the prosecutor. As Zegas explained during the hearing, several resolutions call on the Assembly to refer to law enforcement any matters that it believes are violations of law. “Given those references … Mr. Wildstein could not possibly answer the questions put to him and properly assert his right to silence, and I don’t believe it would be at all appropriate for this committee to exact a penalty for the assertion of those rights,” Zegas told the committee. “It would be a horrible precedent.”
Joshua Field, deputy director of Legal Progress at the Center for American Progress and a former public defender, explained that “individuals have a nearly absolute right to silence to avoid self-incrimination.” Only if both federal and state immunity were granted to Wildstein through a formal deal could “contempt charges …. stick because the answers would no longer be inculpatory and the Fifth Amendment would not apply.”
New Jersey law does provide a mechanism for that sort of deal. Another New Jersey provision offers individuals protection of their testimony and “evidence derived therefrom” through a formal offer that explicitly involves approval by the U.S. Attorney for New Jersey, the county prosecutor, and by a vote that includes the attorney general. This deal is not without its limits. It doesn’t grant the individual full immunity from any crimes, and thus a prosecutor could, in theory, independently verify information from the testimony and then use it against someone like Wildstein. But the U.S. Supreme Court has made explicit that this is as far as an immunity deal is required to go. If Wildstein had refused to testify in the face of that guarantee, he would have been very susceptible to a contempt conviction.
Even without that sort of immunity grant, it is possible Wildstein could be found guilty of contempt if a court determines that the question Wildstein was being asked to answer could not possibly incriminate him, even indirectly. As Field explains, is very unlikely that a prosecutor could not meet that test. While we don’t know what criminal charges Wildstein may face, Field said, “my guess is that, because the New Jersey Assembly was asking questions about alleged abuses of official power, there is a good likelihood that (a) there is some state or federal crime that Wildstein could be charged with and (b) the answers the Assembly was looking for Wildstein to answer are material and could be used to help prove those crimes against him. This would mean that the Fifth Amendment would serve as a defense to contempt charges.”
This is probably good news for Wildstein, and a comfort to those watching the proceeding from afar. But a cautionary note: Anyone who wants to invoke the right to silence would be wise to do as Wildstein did and explicitly, repeatedly explain that you are invoking it. Just this past term, the U.S. Supreme Court held that those who simply remain silent during police questioning without first stating that they are invoking their right to do so don’t benefit from the amendment’s protection.