The Distortions of Christie’s Record as U.S. Attorney

As U.S. Attorney for New Jersey, Chris Christie stepped on the toes of some extremely powerful people in his efforts to eliminate corruption in the Garden State. Accordingly, he had to expect that friends of individuals he sent to jail would seek revenge by resorting to character assassination if he ran for Governor. Indeed, the long knives of the friends of those he sent to jail are now out there against Chris Christie. Their ranks have been joined by others who, while not friends of those convicted by Christie, have their own grievances against him, often motivated by jealousy.

The problem is, however, that these detractors have no facts to form the basis of a negative character offensive against the former U.S. Attorney. Character assassination efforts always begin with a smear of the target's private life. In this realm, the Christie detractors don't have a hope. Chris Christie has lived an exemplary private life. Although for much of his life he has been in the political arena, where sadly, marital fidelity is often the exception rather than the rule, Chris and Mary Pat Christie have an ideal marriage and are wonderful parents to their four children as well.

So the private life smear route was out for the Christie character assassins. Thus, they would seek to distort his record as U.S. Attorney. His competence and courage were beyond question. Therefore, they would attempt to distort some other aspect of his record, and after what must have been an absolutely exhaustive search, they focussed their efforts on Christie's appointment of monitors in the deferred prosecution agreements regarding the University of Medicine and Dentistry of New Jersey (UMDNJ) and the medical device industry. The pathetic efforts of Christie's enemies to smear him on this basis would be laughable if they were not so offensive.

The three appointees who have been the targets of the Christie detractors are 1) former U.S. Attorney and former U.S. District Court Judge Herbert Stern as UMDNJ monitor, appointed in December, 2005 ; 2) former U.S. Attorney General John Ashcroft as monitor of Zimmer, Inc., a hip and knee replacement company, appointed in September, 2007; and 3) former U.S. Attorney for the Southern District of New York David Kelly as monitor of Biomet Orthopedics, Inc., another hip and knee replacement company, likewise appointed in September, 2007. In evaluating these appointments, it is essential to consider two issues: 1) the professional qualifications of each appointee; and 2) whether there were any conflict-of-interest considerations that should have barred any of these appointments.

The short answer to both these questions is that all three individuals were superbly qualified for these appointments and that absolutely no conflict-of-interest issues existed with respect to any of them. Before examining each appointment, however, one should first understand the duties of a monitor. In certain corporate criminal prosecutions, the U.S. Attorney has the option of entering into a Deferred Prosecution Agreement (DPA) with the corporation in question, requiring the corporate defendant to implement certain reforms. A Criminal Complaint is filed simultaneously with the execution of the DPA, and if the corporation in question completes all the required reforms, the Criminal Complaint will be dismissed at the end of the term of the DPA. A monitor is appointed to ensure the defendant corporation's compliance with the required reforms.

Obviously, the major qualification for a monitorship is criminal law prosecution experience. On this prerequisite, all three appointees were abundantly qualified. Herb Stern was an ethically impeccable and supremely competent U.S. Attorney and Federal Judge who has been universally praised by jurists on both sides of the political aisle. Although some Democrat partisans have criticized the judicial philosophy of Ashcroft, virtually no competent judicial authority has ever questioned Ashcroft's competence or ethics. John Ashcroft was no Alberto Gonzalez.

Most interestingly, David Kelly, on whom the Christie critics have concentrated their fire, was the most uniquely qualified of the three, due to his extensive experience in matters involving the healthcare and pharmaceutical industries, as well as white collar crime. In fact, Christie could have been criticized had he not considered Kelly for a monitorship.

On the conflict-of-interest issue, it is amazing how mindlessly the Christie critics have attempted to turn the pay-to-play issue on its head in the case of Herb Stern. Criticizing Herb Stern's ethics is like criticizing Johnny Unitas's quarterbacking skills during his prime. Yet the anti-Christie cabal has had the audacity to criticize Stern and Christie on the basis of the fact that Stern made a contribution to the Christie campaign three years after his appointment.

The anti-Christie argument that this is pay-to-play is patently ridiculous on its face. Stern made the contribution long after his federal monitorship appointment was made, and by making the contribution, he has knowingly barred both himself and his law firm from receiving any state contracts during a Christie administration. As Christie noted in his press conference, this would be a very strange form of pay-to-play. The vacuous nature of this anti-Christie argument, however, shows how far his angry foes will go in attempting to discredit him.

As for John Ashcroft, the anti-Christie ethical argument against him is just plain silly. The argument is that since Christie worked under the former Attorney General during his tenure as U.S. Attorney, that makes him a friend of Ashcroft. If friendship were a bar to a federal or state appointment, however, every President or Governor during the past century would have had to fire half of his or her cabinet. What is comical about this argument is that to my knowledge, Chris Christie is hardly a major social friend of John Ashcroft.

It is the David Kelly appointment, however, that has been the subject of the most intense criticism of the anti-Christie critics. They allege that the appointment of Kelly gave rise to the appearance of impropriety. The allegation goes as follows: the decision by David Kelly in March, 2005 to pursue a case against Christie's brother, Todd Christie for securities law violations on a civil law rather than a criminal law basis appears to have been made in exchange for the promise of the Biomet federal monitorship.

What is so ludicrous about this allegation is that the Biomet monitorship did not even exist at the time of Kelly's 2005 decision – in fact, the monitorship did not even exist until two and a half years later in 2007. Furthermore, Kelly's decision to proceed against Todd Christie on a civil rather than a criminal basis was vindicated in October, 2008, three years after he left the U.S. Attorney's office for the Southern District of New York, when the federal Securities and Exchange Commission dropped all civil charges against Todd. If the Securities and Exchange Commission did not have enough evidence to sustain a civil charge against Todd Christie on the civil law "preponderance of evidence" standard, then certainly David Kelly did not have enough evidence to pursue him on the criminal law "beyond a reasonable doubt" standard. In fact, had Kelly instituted a criminal proceeding against Todd Christie, he would have been justifiably subject to a charge of prosecutorial abuse. The fact that he did not do so is a tribute to Kelly's ethics and competence.

It is clear, however, that Christie's appointment of David Kelly was a bad political move. In the political realm, proper actions are subject to malicious distortion. Had Chris been thinking politically, he never would have appointed Kelly, for he would have to have known that his foes would wrongfully portray this appointment as a quid pro quo if he ever ran for office in the future. And the fact that this was a bad political decision is actually a further ethical tribute to Chris Christie. As everybody knows who worked for him in the U.S. Attorney's office, Chris Christie was most vehement in excluding any and all political considerations from any decisions he made in any matters as U.S. Attorney.

It is now incumbent upon Jon Corzine to disavow the slanders of the anti-Christie cabal. In two of my last three columns, I have described Jon Corzine as a decent and ethical man. When Douglas Forrester’s 2005 gubernatorial campaign attempted to use Corzine’s divorce as a negative campaign tactic, I was outraged and publicly said so. On this week’s On the Record NJN broadcast, Chris Christie referred to Corzine as an ethical man. If Corzine fails to disavow the character assassination effort against Christie, it will reflect poorly on Corzine’s own ethics and character.

This year’s gubernatorial election will feature a Republican of the center-right in Chris Christie versus a Democrat of the center-left in Jon Corzine. It should be an illuminating campaign in which Christie criticizes the record and policies of the Corzine administration while portraying his own alternative vision for a better New Jersey, while Corzine defends his record and points out what he perceives to be flaws in the Christie platform. Ad hominem attacks against either candidate should be verboten. Both candidates should sign clean campaign pledges. I am certain that Christie would sign such a pledge, based upon his On the Record interview described above, and I would hope that Jon Corzine would sign such a pledge as well.

The famous Chicago-based author Finley Peter Dunne coined the aphorism, “Politics ain’t beanbag.” That is certainly true, but politics doesn’t have to be an arena of slander and character assassination. Hopefully, Chris Christie and Jon Corzine will give the Garden State in 2009 campaigns New Jerseyans deserve, similar to the high minded campaigns that Tom Kean and Jim Florio waged in 1981.

Alan J. Steinberg served as Regional Administrator of Region 2 EPA during the administration of former President George W. Bush. Region 2 EPA consists of the states of New York and New Jersey, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, and seven federally recognized Indian nations.

The Distortions of Christie’s Record as U.S. Attorney