The defense attorney for convicted former state Sen. Joseph Coniglio (D-Paramus) is trying to force The Record's parent company to turn over notes and recordings from its April editorial board meeting with Republican gubernatorial nominee Chris Christie.
The parent company, North Jersey Media Group, is trying to quash the subpoena.
The legal battle stems from attorney Gerald Krovatin's post-trial motion to dismiss the original federal indictment against Coniglio on the grounds of selective prosecution.
In April, Coniglio, who resigned from the legislature in 2007, was convicted of extortion and mail fraud for steering grants to Hackensack University Medical Center, which employed him as a consultant for $5,500 per month. Christie was U.S. Attorney during the office's investigation of Coniglio and his subsequent indictment, though he resigned before the trial began.
After reading an April 30 story about Christie's meeting with The Record's editorial board the day before, Krovatin dropped a subpoena on the paper seeking all notes and recordings from the meeting, along with any documents that identified attendees. The paper's story, he said, contained quotes from Christie that lent credence to his argument that Coniglio was selectively prosecuted.
Most notably, Krovatin pointed to two statements by Christie that were quoted in the story. One was Christie recounting criticism of the Coniglio indictment as "a bridge too far" in which he "overreached."
"And yet here we sit and still, even after I left, I have not lost one case in the political realm that I indicted," Christie told the paper.
In another statement, Krovatin said that Christie linked the origins of the investigation of Coniglio with Gov. Corzine's 2006 budget battle for the legislature, in which Christie accused Corzine of caving into legislators' demands by allowing $300 million worth of "Christmas tree" items into the budget.
"He admits that people were questioning whether he overreached in the indictment, and he connected the prosecution directly to the political process," Krovatin told PolitickerNJ.com.
The company laid out its arguments to quash the subpoena in a motion to Judge Dennis Cavanaugh, arguing that Krovatin did not have the necessary permission to seek post-trial discovery and that the story did not contain evidence of selective prosecution necessary to justify a subpoena.
North Jersey Media Group also claimed reporter's privilege, arguing that it extended to unpublished information from non-confidential sources. Christie, their attorneys noted, was accompanied to the interview by an aide who recorded it himself, making Krovatin's subpoena far from the type of last resort move required to overrule reporter's privilege.
"Evidence about an interview of a political candidate in April 2009 cannot reasonably be expected to provide any material evidence that is both relevant and necessary to a motion to dismiss an indictment issued in February 2008," read the document. "The subpoena constitutes a blatant fishing expedition and should not be allowed."
In a phone interview with PolitickerNJ.com, Krovatin said he was surprised that North Jersey Media Group fought his subpoena request.
"I didn't think that it would be that controversial. Clearly it's the kind of thing that's on the record from beginning to end," he said. "I'm not seeking controversial sources, newsgathering methods, or asking a reporter to take the witness stand."
In a letter to Judge Cavanaugh disputing the paper's motion, Krovatin said that The Record had waived reporters' privilege during the trial by allowing investigative reporter Jeff Pillets to testify. That also freed him from the burden of seeking material from the paper only as a last resort, he argued in a separate email to PolitickerNJ.com.
Krovatin also wrote that Christie's comments did arouse suspicion of selective prosecution – that "the suggestion of a political motive for the very initiation of the Coniglio prosecution is very clear."
Responding to the company's argument that Christie made the comments to "underscore campaign themes," Krovatin accused its flagship paper of bias against Coniglio and the Bergen County Democratic Organization.
"While the Record has every right under the First Amendment right to promote Republican candidate Chris Christie in its editorial pages and commentary, in its news pages and even its legal briefs, it has no right to withhold relevant evidence in a criminal case by characterizing Christie's comments as merely innocuous ‘campaign themes' about his ‘good judgment.'"
This afternoon, North Jersey Media Group sent its own letter to Cavanaugh in response to Krovatin. Attorney Michael Berry reiterated the argument that reporter’s privilege can only be overcome when all alternate resources are exhausted, and that Krovatin had not attempted to get the information from Christie or his aide.
Berry also argued that North Jersey Media Group never waived its reporter’s privilege by letting Pillets testify.
“Mr. Pillets testified only after NJMG invoked the privilege, counsel engaged in substantial negotiations with the United State Attorney’s office about the scope fo the subpoena, and the government agreed to limit its subpoena to testimony to authenticate published statements made by the defendant and his former chief of staff,” he wrote.