Analysis: Gibson Dunn & Crutcher Report on New Jersey Bridge Scandal Deviates from Federal Standards

Analysis: Gibson Dunn & Crutcher Report on New Jersey Bridge Scandal Deviates from Federal Standards

Attorney Randy Mastro sent the following statement in response to questions about the report he presented:

"Any fair and objective reading of this report would have to acknowledge it is thoroughly researched and extensively sourced. Your questions go to tone and language, not the substance of the report's findings, which are unassailable. All five of us who spearheaded this investigation are former federal prosecutors who worked for the very Justice Department whose standards you cite. We had only one incentive here: to get to the truth. And we set about to do that by conducting more than 70 witness interviews and reviewing more than 250,000 documents. And then, we memorialized our findings and recommendations in a 344-page report, citing more than 1,400 footnotes and publishing more than 600 hard copy exhibits. We sought only to get to the truth, and we believe we got to the truth on the most important questions, including that the Governor did not know anything about this lane realignment decision beforehand."

They interviewed Christie and the governor’s staff. They read office and personal emails, and even text messages.

Christie is using the report by the Gibson Dunn & Crutcher law firm as definitive proof he had no role in the closure of access lanes to the George Washington Bridge, nor did his administration condition Hoboken’s disaster aid on approval of a development project.

The report, however, faced immediate criticism from Democrats and newspaper editorial boards and dismissal by most of those in a recent Monmouth University poll that showed only 30 percent of New Jerseyans see it as fair and unbiased.

But the reasons for skepticism go beyond the fact that the report was commissioned by Christie.

The investigative arm of Congress, the Government Accountability Office, publishes standards that its work must follow in what’s known as “The Yellow Book.” So, too, do the in-house watchdogs in the federal and many state governments, known as inspectors general.

The GAO’s “Yellow Book” cautions auditors to avoid “threats to independence,” including self-interest, which is a financial or other interest that will influence judgment, and “bias threat,” that an auditor “will, as a result of political, ideological, social or other convictions, take a position that is not objective.”

Mastro’s firm was chosen to conduct the investigation by the Christie administration and will be paid by the state. An agreement with the Attorney General’s Office calls for the firm to receive $650 an hour.

Mastro noted at a news conference that he was a registered Democrat, but for many years he served in both the New York City Mayor’s Office and the U.S. Attorney’s Office in Manhattan under Rudolph Giuliani, a republican and top Christie supporter who has been one of the governor’s most prominent defenders on television news shows.

Debra Wong Yang, another lawyer at Gibson Dunn involved in the investigation, was a contributor to Christie’s 2014 inaugural committee, and her daughter served as an intern in his office in 2011. She also served as a U.S. attorney when Christie held that job in New Jersey, and after she left was awarded a contract by Christie to monitor a corporation that agreed to outside control in order to avoid prosecution.

In addition, Mastro was representing the Port Authority on a lawsuit brought by a motorists association challenging toll increases when he was hired. He later withdrew, but Gibson Dunn continues to represent the agency.

Asked about this at a news conference, Christie said he would be hard-pressed to find a law firm that he did not have some connection with because of his experience as U.S. attorney.

Mastro did not respond directly to a series of detailed questions about these issues, but pointed in his statement to the volume of work performed, including 70 interviews conducted, 250,000 documents reviewed, 1,400 footnotes and 600 exhibits.

“We had only one incentive here: To get to the truth,” he said.

The investigative arm of Congress and the association of inspectors general for federal agencies have guidelines for writing reports. Inspectors general for states also have standards, according to their professional association.

Investigators are urged to state facts. They are told to avoid adjectives or adverbs when describing people and events. These standard guidelines, experts said, are designed to ensure fairness and to encourage public trust in the investigators' work.

The Record analyzed the report prepared by Governor Christie's legal team and found these examples of wordusage, among others, to characterize their finding of fact.

Times used in report: 11

Notable uses: The word was used exclusively to describe statements made by Bridget Anne Kelly, Governor Christie's former deputy chief of staff now at the center of the George Washington Bridge lane-closure controversy, and to characterize the allegations against Christie made by Hoboken Mayor Dawn Zimmer, who said administration officials tied her city's Superstorm Sandy recovery aid to support for a redevelopment project.

...Our investigation found that, in material respects, Mayor Zimmer's account of this exchange is demonstrably false, the report said....

By contrast, the report did not find anything said or done by Christie or any of his supporters to be "false." When public statements from Christie later turned out to be contrary to the facts — including his Dec. 13 news conference, when he said none of his senior staff members was involved in the lane closures — the report said that was "incorrect" and was the result of the governor's being misled, the report said.

Number of times used: 62

Notable uses: "Even" appeared in quoted materials five times. In other uses, it was used in many ways to add emphasis to a point or conclusion.

Two such uses of the word in that context were in the same sentence concerning the issue of whether Wildstein discussed the lane closures with Christie on Sept. 11, 2013.

...Wildstein even suggested he mentioned the traffic issue in Fort Lee to the Governor at a public event during the lane realignment — a reference that the Governor does not recall and, even if actually made, would not have registered with the Governor in any event because he knew nothing about this decision in advance … the report said....

Another example was when the report explored the issue of whether political retaliation was a motive for the closures.

...This is a question we are unable to answer, even after a thorough investigation, the report said....

And another notable use occurred during a discussion of whether there was evidence to support the allegation that Lt. Gov. Kim Guadagno threatened Zimmer. The report said Guadagno liked Zimmer and "even had a photo of herself with Mayor Zimmer in her office."

Times used in report: 9

Notable uses: The word was used when the lawyers emphasized the scope of their review and their exploration of the evidence they gathered.

It was the "extensive additional evidence" gathered by the lawyers that enabled them "to thoroughly investigate Mayor Zimmer's allegations," the report said.

The word is also used in one of the report's subject headings to describe included documentation of the help Christie administration officials gave to Hoboken.

...We have attached an appendix setting forth an extensive list of 28 examples of that assistance, the report said....

Times used in report: 10

Notable uses: Briefly was used several times to describe conversations involving Christie or his administration's top aides about key issues, including when Christie first knew of the lane closures and when he or his staff first knew someone from the governor's office was involved.

Questions have been raised about whether Christie knew about the lane closures as they were occurring. The governor has repeatedly said he first learned of the lane closures afterward. In one of the report's revelations, Wildstein is said to have told Christie spokesman Michael Drewniak that he spoke to the governor about the lane closures during a 9/11 memorial event. A photo from an event on Sept. 11 showed Christie interacting with Wildstein, the Port Authority official the report cast as a key figure in the lane closures.

The report characterized that meeting as "briefly" to describe a conversation involving Christie and former chief of staff Kevin O'Dowd that helped explain Christie's version of events.

...O'Dowd recalled the Governor acknowledging that he spoke briefly with Wildstein at the event, but did not recall any mention of a traffic study, lane realignment, or traffic problems, the report said....

Times used in report: 2

Notable uses: The word "certainly" was used to provide emphasis to the conclusions the report drew regarding the Zimmer allegations and specific events that occurred in May 2013. Zimmer alleged that Guadagno and Department of Community Affairs Commissioner Richard Constable made it clear to her at two events that Sandy aid was tied to the redevelopment project. But the report noted that she didn't come forward with those concerns until much later.

...Mayor Zimmer certainly had multiple opportunities to inform law enforcement and the ability to get an immediate audience given her position, the report said....

Zimmer, who was not interviewed for the report, has maintained she didn't come forward about the pressure she alleges was being applied by Christie administration officials because she feared retaliation that could impede the city's storm recovery.

Times used in report: 8

Notable uses: The word was used repeatedly in references to Wildstein. They include his "crazy" ideas and his "50 crazy ideas a week." The word also came up in an email quoted in the report that was written by Drewniak after the press secretary read a news story on the lane closures.

...At least it doesn't run wild with that crazy allegation it was done as political retaliation, the report quoted Drewniak as saying....

Times used in report: 16

Notable uses: The report's important conclusions were emphasized by the use of "simply," such as Christie's belief that the lane closures were "simply a traffic study."

"Simply" was also used to buttress the argument that Constable, a former federal prosecutor under Christie when he was U.S. attorney, could not have exerted pressure on Zimmer.

...There is simply no reason why he would send such a message to Mayor Zimmer in this public setting or any other, the report said....

The word was also used in a section involving Belmar Mayor Matt Doherty to emphasize his credibility as a purported witness to conversations Zimmer and Constable had at a May 2013 town hall event. Doherty told the lawyers he didn't hear Constable threaten Zimmer.

...He does not appear to have any motive to contradict Mayor Zimmer or to credit Commissioner Constable, the report said. "Rather, he simply appears to be telling the truth, as he recalls it."...

The report did not mention that Doherty was quoted by The Record on Jan. 18 saying something seemingly contradictory. He not only said he didn't hear Constable threaten Zimmer, he said: "I didn't hear any conversation between the two of them."

Times used in report: 5

Notable uses: The report offered extended biographies of Hoboken Mayor Dawn Zimmer, Governor Christie, Lt. Gov. Kim Guadagno, Department of Community Affairs Commissioner Richard Constable and Sandy recover czar Marc Ferzan, and it used those details to bolster its support for the governor’s administration.

It twice noted that, as U.S. attorney, Christie

...oversaw the successful prosecutions of more than 130 public officials for corruption, among other notable accomplishments. He "earned a national reputation as a tough and fair-minded prosecutor," the report said....

Guadagno won several awards when she was a prosecutor, the report said, including "one of the U.S. Department of Justice’s highest honors."

Its biography of Zimmer, on the other hand, included no words of praise. The backgrounds alone of the key players in this controversy are enough to cast doubt on Zimmer’s statements, the report said.

...Mayor Zimmer’s allegations take aim at three highly accomplished and dedicated former law enforcement officers and public servants, it said. "Putting aside the strong evidence calling into question Mayor Zimmer’s claims, it seems unlikely that these three individuals would have taken the actions that Mayor Zimmer has alleged."...

Ousted Christie aide Bridget Anne Kelly’s personal history, too, was apparently a reason to doubt her, according to the report’s wording. The report gave few biographical details about her, but it noted that when she replaced Bill Stepien as deputy chief of staff, "she lacked Stepien’s expertise and background."

Times used in report: 10

Notable uses: The report described Christie and Kelly at several points, using the words "emotional," "tears" and "crying."

The report mentioned twice that Christie held an "emotional" meeting with top aides on Jan. 8 after The Record published a story making clear Kelly and Wildstein were involved in the lane closures.

...It was an emotional session, in which the Governor, welling up with tears, expressed shock at the revelations, the report said....

Each time the report described the governor as becoming "emotional," it was taken as evidence of his innocence.

"When he finally learned the truth," the report said, "Governor Christie was genuinely shocked and disappointed — welling up with emotion — as numerous members of his senior staff have confirmed."

The word "emotions" was used in a different way to describe Kelly.

After Christie announced in a December news conference that Port Authority executive Bill Baroni was resigning, Deb Gramiccioni

...passed by Kelly’s office and noticed that Kelly was seated alone and looked as if she had been crying, the report said, suggesting that Kelly was wrestling with a guilty conscience....

The report prepared by lead attorney Randy Mastro of Gibson Dunn appears to diverge from those standards in several ways, according to an analysis by The Record and interviews with experienced investigators.

Reports can be persuasive, these standards say, but persuasion should come from facts and not

...adjectives or adverbs that characterize evidence in a way that implies criticism or unsupported conclusions....

The Mastro report included more than 500 adverbs and adjectives, and in many crucial accountings of facts or presentations of conclusions the authors used them to color descriptions, such as calling things said by one Christie accuser “demonstrably false” — eight times.

The standards call for sources of facts to be clearly identified.

But a troubling revelation in the report — that former Deputy Chief of Staff Bridget Anne Kelly told an aide to delete an email showing she knew of the Fort Lee mayor’s complaints about traffic while the lanes were closed — is presented as a direct quote, although the phrase “sum or substance” precedes it, indicating it is a paraphrase, with no source for the quote footnoted.

The standards require that limitations on investigators, such as sources who could not be interviewed, be clearly noted, with reasons why.

The report did not explain why some Christie allies were not interviewed, most notably the Port Authority’s then-Chairman David Samson, but it did say it was an inference of guilt on the part of those who asserted their Fifth Amendment rights not to speak.

Investigators should be independent of the people they are investigating, the standards say.

Mastro and another lawyer involved in the report had political, personal or business connections to Christie or the Port Authority.

Experts said adhering to these standards is vital, not only to a report’s integrity, but to the public’s acceptance of it.

...We should be objective so our opinions, conclusions, judgments and recommendations be impartial and be viewed by others as impartial, said Melinda Miguel, Florida’s chief inspector general and president of the national Association of Inspectors General....

...If you used charged language, I believe that could cause people to believe we have a bias. We need to use caution in selection of word choice when presenting a report to decision makers, she said....

The Justice Department does not have set guidelines, but it does give corporations involved in wrongdoing leniency if they conduct a thorough internal investigation that gives the government an unvarnished view of what happened and what the company was doing to fix the situation.

...If you do an internal investigation and it strays from the facts, and tries to explain inconvenient facts away, it loses the credibility of enforcers and you do not get credit with enforcers when they decide what to do, said Matthew Axelrod, who until this year was an assistant deputy attorney general in Washington, overseeing the work of the criminal and tax divisions and U.S. attorney’s offices around the country....

Neither Miguel nor Axelrod had read Mastro’s report, but they spoke about what a credible report should include and reacted to passages described by The Record.

Any investigation into a politically charged issue is bound to face questions about the credibility of the results.

Former Gov. Thomas H. Kean said he tried to confront the issue of perceived bias when he was named chairman of the commission investigating the Sept. 11, 2001, terrorist attacks.

He made his Democratic counterpart, former Rep. Lee Hamilton, a partner in managing the commission, even refusing to go on “Meet the Press” at one point unless Hamilton also was invited. He also requested all of the other commission members agree to interviews only if someone from the opposite political party took part as well.

“It made it very hard for anybody to accuse us of being partisan,” Kean said.

When the commission had disagreements on the language in the report, Kean said, he would urge members to get together and go over the facts.

...Once you got rid of the adjectives and looked at the facts, it was very hard for people to argue, he said....

The mission of a government auditor or a corporate investigation could vary from the broader public inquires like the 9/11 Commission’s or the job Mastro was asked to perform when he was retained by the state Attorney General’s Office in January.

But details of Mastro’s mission were vague. The announcement from Christie’s office said only that the firm would provide “an outside, third-party perspective to the situation.”

What was produced was a passionate narrative that defended and absolved Christie and denounced his accusers and faulted those it said were ultimately responsible for closing the lanes.

Mastro said in an emailed statement that a fair reading of the report

...would have to acknowledge it is thoroughly researched and extensively sourced and that the questions raised by The Record "go to tone and language, not the substance of the report’s findings, which are unassailable."...

Mastro said the five attorneys who spearheaded the investigation

...are former federal prosecutors who worked for the very Justice Department whose standards you cite....

...We believe we got to the truth on the most important questions, including that the Governor did not know anything about this lane realignment decision beforehand, Mastro said....

Here are some of the issues that emerge in a close reading of the Mastro report with the comments of experienced investigators and pertinent standards as a frame of reference.

The most potentially damaging revelation in the report — that David Wildstein, the former Port Authority official who ordered and oversaw the lane closures, said he told Christie about the lane closures while they were happening when the two were together at the World Trade Center memorial on Sept. 11, 2013 — is described in a way that casts doubt on its veracity.

One sentence starts, “Wildstein even suggested he mentioned the traffic issue,” using the adverb “even” to imply it might be unusual or unbelievable for him to say such a thing.

That sentence, like many others in the report, appears to run counter to standards set out by the publication “Government Auditing Standards,” commonly known as “The Yellow Book” at the GAO.

The publication states that

...a report’s credibility is significantly enhanced when it presents evidence in an unbiased manner and in the proper context. This means presenting the audit results impartially and fairly … [and] refraining from using adjectives or adverbs that characterize evidence in a way that implies criticism or unsupported conclusions....

The sentence in the Mastro report about Wildstein’s informing Christie of the lane closures went on to say the “Governor does not recall” without citing any source, such as an interview with the governor or a direct quote from him. The report then reached the conclusion that the governor “would not have considered another traffic issue at one of the bridges or tunnels to be memorable,” without saying if that was a statement the governor told investigators, or the conclusion of investigators.

A footnote went into more detail of the scene of the meeting between Wildstein and Christie, with other people nearby and spectators requesting photographs, before concluding,

...Not surprisingly, the Governor has no recollection of such an exchange....

Wildstein, Kelly and Bill Stepien, the former manager of Christie’s campaign who was due to take control of the Republican State Committee before Christie severed ties with him, all refused to be interviewed by Mastro’s team, and have cited their Fifth Amendment rights against self-incrimination in investigations being conducted by a legislative committee.

At separate points in the report, the three were each described as “refusing to answer” or “refusing to provide documents.” The report then said the refusal “leads to a reasonable inference that” his or her “motives and actions were, in whole or in part, improper.”

Miguel, the head of the national group of state inspectors general, said she would avoid this kind of conclusion. She said reports should mention witnesses who could not be interviewed and whether they cited their Fifth Amendment rights, but should let the reader conclude what that says about their motives.

“I would caution even whether to word it as ‘refused,’Ÿ” she said. “I would characterize it as someone ‘did not provide their testimony’ and the basis why.”

At a news conference after the report’s release, Christie said the phrasing was proper because civil proceedings allow for the drawing of a negative inference when someone cites a possibility of self-incrimination for not answering.

“I don’t think that’s fair in this case,” Axelrod said. “There’s an active criminal probe going on. Any criminal defense attorney would take the position you don’t get interviewed by anybody unless you have a deal with the prosecutor. It would be malpractice for criminal defense attorneys if they allowed their witnesses to talk to Mastro, and I don’t see how it’s fair to take a negative inference from that.”

The report also did not mention what efforts were made to speak with other Port Authority officials, such as Samson, the authority’s chairman and leader of a law firm that represented a developer in Hoboken, The Rockefeller Group, at the heart of  Hoboken Mayor Dawn Zimmer’s allegations about Superstorm Sandy aid being linked to approval of a development project. Samson is described in a Wildstein email as “helping us to retaliate” after the authority’s executive director, Patrick Foye, reopened the access lanes to Fort Lee traffic.

The closest the report came to explaining Samson’s silence was this sentence, which provided no explanation for the reason the parties declined:

...The Rockefeller Group and Wolff & Samson declined our request for interviews and documents....

...All reports shall present factual data accurately, fairly, and objectively, according to Principals and Standards for the Offices of Inspector General, the "green book" used by state inspectors....

Some of the quoted material chosen for inclusion in the report is derogatory.

At three points, Wildstein was described as having “crazy” ideas.” At one point, the report said Christie asked Stepien at a meeting at the governor’s mansion in December what he knew about the lane realignment and Stepien responded that Wildstein “would come to him with ‘50 crazy ideas a week.’Ÿ” Christie was not quoted about this, though it appeared he was the source of the secondhand quote, since Stepien was not interviewed.

Throughout the report, positive descriptions were used for the governor and his remaining staff, and negatives were used for Wildstein and Kelly, who were fired, and Zimmer.

The word “false,” for example, was used 11 times, all to describe statements or actions by Kelly or Zimmer. But statements Christie made in December denying anyone on his staff’s involvement in the lane closures, which he later admitted were false, are described as “incorrect.”

Christie, Lt. Gov. Kim Guadagno and Community Affairs Commissioner Richard Constable were described as former federal prosecutors, a description used to impugn suggestions they would engage in wrongdoing.

...To credit Mayor Zimmer’s account, one would have to believe that Guadagno, a former federal prosecutor and county sheriff, made a full confession — right there, out in the open, in the supermarket’s parking lot, immediately after a public event, with press and staff nearby – that she was doing something wrong, knew it was wrong, and was doing it anyway, the report said....

Information was included in the body of the report that also bolsters the conclusion that Christie and his administration were blameless, while information that was arguably more damaging was downplayed or omitted.

For example, photographs of Zimmer yawning on the set of a television program where Constable supposedly had said she needed to approve the Rockefeller development was included in the body of the report. A photograph showing Christie with Wildstein at Ground Zero was only referenced in a footnote with a link showing where it could be downloaded.

Variations in Zimmer’s story were covered in detail as proof her accusations were false. But variations in the account of what Belmar Mayor Matthew Doherty heard as he sat next to Zimmer at that television program were not included, as Doherty is offered as an independent eyewitness to support Constable’s denial.

Email: jackson@northjersey.com, reitmeyer@northjersey.com and linhorst@northjersey.com
Blog: northjersey.com/thepoliticalstate

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