February 15, 2007
Subpoena Fight Over New Jersey Legislative Records
The Office of Legislative Services (OLS) for the New Jersey State Legislature is fighting a federal grand jury subpoena seeking records related to possible conflicts of interest in the state budgeting process, according to an article in the Newark Star-Ledger (here). The investigation grows out of an earlier investigation of Medicaid and Medicare fraud at the University of Medicine and Dentistry of New Jersey (UMDNJ) that was settled with a substantial penalty and appointment of a monitor. A report by the monitor identified a possible no-show job for a state Senator at UMDNJ, and federal prosecutors are now looking at a wider range of possible corruption involving the award of discretionary grants by legislators. OLS, which is a non-partisan arm of the legislature that received the subpoena, asserts that the records sought, including e-mails and internal memos, are confidential, and seeks to quash the subpoena.
The problem the state legislature faces is that federal grand juries are entitled -- in a time-worn phrase sure to appear in the district court's decision -- "to every man's evidence." A state confidentiality statute is unlikely to win out over the authority of a federal grand jury to compel the production of records, and state legislative privileges are not recognized under the federal Speech or Debate Clause, so that road is unavailable to prevent enforcement of the subpoena. Public corruption investigations of state and local officials always raise sensitive issues of federal authority, and the fact that a Republican U.S. Attorney leads the office investigating the actions of Democratic state officials makes it even more complicated. But on the narrow issue of the enforceability of a federal grand jury subpoena, the smart money is usually on the federal government getting what it demands. (ph)
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