Betsy Devine: Funny ha-ha and/or funny peculiar

Another reason to be glad to be home–the “beauty bush” by my front door just started blooming!

These two clusters of yellow-centered white flowers shed enough fragrance to perfume my kitchen. (Behind them is a tiny tomato plant growing in a pot. Thank you, Whole Foods, for guessing how much I would like this!)

“Beauty bush” has none of the magic of flower names like “witch hazel”, “rhododendron”, or “forsythia.” And yet, quite a few different kinds of plant somehow ended up being called beauty bush–which makes it hard to go to the nursery and pick out another plant with the same wonderful, wonderful perfume.

Google Image suggests that this plant’s real name is Kolkwitzia.

Easy to see why most of us prefer its nickname…

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Reagan-fan Craig Shirley in the WaPo today:

On top of all the scandals, it has just come to light that the RNC paid millions* in legal bills to defend operative James Tobin, who was convicted with associates in an illegal phone-jamming scheme aimed at preventing New Hampshire Democrats from voting. In doing so, the GOP appears to sanction and institutionalize corruption within the party.

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* Update those early reports of a mere $2.something million.

We now know that didn’t include RNC payments to defend against the NH Democrats’ civil suit* * on the phone-jamming.

According to SenateMajority.com, we’re now talking close to $6 million:

• Williams & Connolly (James Tobin Criminal Defense) $2,824,584
• Covington & Burling (RNC Civil Defense) $2,997,155
• Devine Millimet & Branch (NH Republican Party Civil Defense) $85,535

Irony of the day: Devine and Millimet was started by my grandfather, Maurice F. Devine, a staunch Democrat whose courage continues to inspire me.

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* * In his criminal trial, Tobin was able to claim Fifth Amendment privilege to avoid testifying. In a civil suit, for the first time, Democrats can question Tobin under oath. Rumor says that NH Republicans somebody has been offering NH Democrats stratospheric sums of money just to drop the lawsuit…

Let’s hope they don’t, because it seems like our nation’s best chance to get some actual answers.

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Port Jefferson, NY, is displaced New England fishing village, its white-balconied clapboard houses in perfect tune with their older brothers and sisters across Long Island Sound.

As Frank and I drove down here last Sunday, it was a real pleasure to watch the progress of springtime outside our car windows. In Massachusetts, the gray trees with red leaf-buds gave way to trees gently dusted with the yellow-green color of spring’s very tiniest leaves. Here on Long Island, the leaves are no longer so tiny, but their early pale colors are still very evident.

You’d think all these hotel rooms with no housework or cooking to do would give me lots of time to work on my novel…

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I heard three fine jokes last night from Nick Samios, a former director of Brookhaven National Laboratory. Nick has a great NY accent, so try to hear these jokes as if Nick were telling them to you.

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Nick and Sophia Christakos are lying in bed. Sophia says, “Nick, what? You’re keeping me awake, is something the matter?” Nick says, “No, go to sleep.” Sophia says, “Tell me, what is it?” Nick says, “If you must know, I owe Joey Angelopoulos over the way $10,000.” Sophia says, “Let me do something to help you.” She gets up, opens the window and hollers across the street, “Hey, Angelopoulos! Nick Christakos can’t pay you!” She climbs back in bed and says, “There. So now he can’t sleep.”

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This is a story about advice, and any story about advice becomes a story about a village rabbi. Two men came to see the rabbi of their village.

The first one said, “Rabbi, I have a pear tree in my yard. My father planted it, I keep it watered and don’t let the chickens peck on its roots. One of its branches hangs over my neighbor’s wall. So what do I see yesterday but my neighbor standing there eating one of my pears. This is theft, and I want him to pay me damages.”

The rabbi nodded his head. “You’re right, you’re right.”

The other neighbor said, “Rabbi, you know that I have seven children–without my garden to feed them, how would I manage? But that tree casts a shadow where nothing will grow. So yesterday, when I go out to dig some potatoes, a pear from his tree falls and hits me right on the head. How am I hurting my neighbor if I eat it? And doesn’t he owe me something for his tree’s blocking sunlight?

The rabbi thought and then said, “You’re right, you’re right.”

Meanwhile, the rabbi’s wife had been hearing all this. “How can you say, ‘You’re right’ to both of these men? Surely one of the men is right, and the other is wrong!”

The rabbi looked unhappy. “You’re right, you’re right.”

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Tom the cat was a cat who loved romance. The trouble was, when he made romance he couldn’t keep from singing and making a racket that woke up the neighbors. So finally, after the neighbors complained and complained, his owner took Tom to the vet and got him fixed.

For a while, the neighborhood was quiet. But then, little by little, Tom took up his midnight wandering and singing, softly at first, then louder and louder, until even his owner couldn’t stand it. The owner said, “Tom, what is this? I thought you were fixed!” Tom said, “Yes, but then I thought–why not become a consultant?”

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MOST BASIC BASICS

• Wikipedia story on “2002 New Hampshire Senate election phone jamming scandal”
• Sourcewatch story on “2002 Election NH “Phone Jamming” Case”
• Betsy Devine’s timeline, giving dates for events starting with the formulation of the plan in 2002.

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WHO’S WHO? ** INDICTED AND/OR CONVICTED **

Sean Hansen

Idaho telemarketer and owner of Mylo Enterprises. Hansen took $2,500 and a set of six NH phone numbers from Allen Raymond, and instructed his employees to make repeated hang-up calls to those numbers on November 5, 2002, the day of a Federal election. Manchester (NH) Police contacted Verizon to get the calls stopped, and by February, 2003 had called in Federal prosecutors because Mylo Enterprises was based in Idaho, not NH. Three and a half years later, the feds finally got around to charging Sean Hansen with a crime.

Allen Raymond

Allen Raymond’s company “GOP Marketplace” worked for GOP candidates as a telemarketing broker, sharing its expertise and negotiating prices with telemarketers around the country. Allen Raymond and/or his company had recently escaped indictment for their telemarketing work on behalf of James Treffinger in a NJ Republican primary. In that case, telemarketers called thousands of voters during the 2002 Superbowl game, attacked one of Treffinger’s Republican rivals, and claimed to be calling on behalf of a different Treffinger rival. Raymond asked for (and got) $15,600 to jam NH phonelines but paid Mylo Enterprises only $2,500 to do the actual calling.

Chuck McGee

In 2002, Chuck McGee was a former Marine and an enthusiastic young Republican working as the (paid) Executive Director of the NH State Republican Party. McGee got the idea of jamming Democrats’ phones after receiving a brochure in the mail with rides-to-the-polls phone numbers. Unable to find a telemarketer to implement his idea, he asked James Tobin to help him. When the phone-jamming story emerged into newspapers in February, 2003, McGee resigned his position with NH Republicans and got a similar job working for conservative thinktank CSE but later resigned after problems with election laws. He currently heads a “national, full-service, GOP direct mail firm.” In July, 2004, McGee pled guilty to one count of phone harassment and served a seven-month sentence in federal prison.

James Tobin

In 2002, James Tobin was working for DCI Group and serving as New England regional director of the National Republican Senatorial Campaign Committee (Tobin’s contract). When Chuck McGee approached him about jamming Democrats’ phones, Tobin gave him Allen Raymond’s number, then phoned Raymond to urge him to give McGee a hand with phone-jamming the Democrats. After the phone-jamming occurred, Tobin had several more conversations with Raymond. Both Chuck McGee and Allen Raymond told Federal prosecutors how Tobin brought them together, but the feds did not indict him or even name him until after NH Democrats filed a lawsuit that revealed Tobin’s name in 2004. By then, Tobin was New England campaign chairman for Bush-Cheney ’04. He quickly resigned, was not indicted until December, 2004, and was convicted on two counts of conspiracy in December, 2005. His RNC-paid lawyers have filed three separate appeals of that conviction.

Update

The Senate Majority Project has compiled more detailed biographies on all four.

WHO’S WHO ** UNINDICTED BUT PART OF THE PHONE-JAMMING STORY **

John Dowd

State Chairman (an unpaid position) of NH Republicans at the time of the phone-jamming and Chuck McGee’s boss, John Dowd first heard Chuck McGee’s plan the night before Election Day, 2002. Uncomfortable with the idea, he asked if the plan could be called off the next morning, once he’d had time to consult with a lawyer. McGee took this to mean that he could proceed with the plan unless Dowd said to stop. Early on the morning of November 5, Dowd got back to McGee and told him the phone-jamming was off. The phone-jamming did not stop, however, until after multiple attempts by McGee to reach Allen Raymond.

Jayne Millerick

State Chairman of NH Republicans in early 2003, when the phone-jamming first made the news. During the 2002 election, Jayne Millerick was in charge of Karl Rove’s 72-hour project for NH. (Her 17-minute call to the White House on the afternoon of Election Day 2002 has aroused some comment.) In 2003, Millerick gave multiple contradictory statements to reporters, working hard to switch the conversation to a new “code of ethics” she urged NH Democrats to join her in promoting.

Darrell Henry

Darrell Henry, a lobbyist for the American Gas Association, is described in James Tobin’s October 23, 2002, expense account as “Sununu Effort.” Chuck McGee testified that Henry knew about the phone-jamming effort as of Election Day, 2002, and said that he’d ask some people to keep it going after John Dowd had pulled the plug.

Chris LaCivita

According to his contract with the NRSC, James Tobin reported directly to Chris LaCivita in 2002. LaCivita later became more famous for a different political effort that harnessed the enthusiasm of political amateurs to push the envelope of campaign laws, the Swift Boat Veterans for Truth.

Chris Cupit

Allen Raymond’s only employee at GOP Marketplace, a former associate of Steve Stockman (TX).

WHO’S WHO ** IN THE NH COURTROOMS **

Judge Steven McAuliffe

Judge McAuliffe presided over the December. 2005, trial of James Tobin. McAuliffe was appointed to the federal bench by Bush Senior in 1992, six years after the death of his wife Christa McAuliffe in the Challenger disaster.

Attorney Dane Butswinkas

Butswinkas, a partner in the DC law firm of Williams and Connelly, represented that James Tobin was a small-town family man who was being railroaded by overzealous prosecutors as a result of perjured testimony from Allen Raymond. Several other Williams and Connelly lawyers were named as participants in the case, but Butswinkas did the voir dire, opening and closing statements, and most of the questioning of witnesses that I saw.

Attorney Tobin Romero

Also a partner in Willams and Connelly, Romero’s only public role in the Tobin trial seemed to be making a few of the defense team’s many objections.

US Attorney Andrew Levchuk

US Attorney with the Computer Crime and Intellectual Property Section, he was Head Counsel for the prosecution of Tobin. Levchuk was assigned to the case in August, 2005, after former head counsel Todd Hinnen was reassigned within the Department of Justice.

US Attorney Nicholas Marsh

A trial attorney with the Public Integrity Section of the Department of Justice Criminal Division, he was part of the DOJ team at James Tobin’s trial.

Hillsborough County Superior Court Judge Philip P. Mangones

Judge Mangones has been presiding over NH Democrats’ civil suit regarding the phone-jamming. At the moment (April, 2006) he is expected to give a ruling soon on Republican demands that the suit be dismissed before trial. He acceded to the October, 2004, demand of DOJ prosecutor Todd Hinnen that the Democrats be blocked from questioning suspects under oath while the criminal trials were in process. In the past, both Republicans and Democrats have praised Mangones for his efforts to treat both sides fairly.

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Many bloggers have written good analyses and updates on this story. Josh Marshall’s TalkingPointsMemos has been a consistent source of good information since the scandal broke in 2003. If you’re looking for recent updates on the story, the level of interest remains high in 2006 at these three sources:

• Marshall’s TPM Muckraker and Paul Kiel have exclusive interviews, links to documents, and almost daily updates in in their NH PHone-Jamming category.
• Mike Gehrke at Senate Majority Project–their analysis of Tobin phone calls to the White House attracted national media attention.
• And, of course, the New Hampshire section of this weblog, with photos and transcripts of many original documents as well as first-hand reporting from NH courtrooms.

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From Allen Raymond’s testimony under oath on December 7, 2005, starting on page 103 of the official transcript:

13 Q. [US Attorney Nicholas Marsh] Mr. Raymond, did you — do you remember having
14 any telephone conversations with Mr. Tobin on Election
15 Day?
16 A. [Allen Raymond] Yes, I do. I recall a conversation on
17 Election Day with Mr. Tobin.
18 Q. Do you remember when you talked to Mr. Tobin
19 on Election Day?
20 A. I believe it was late afternoon.
21 Q. And why did you talk to Mr. Tobin that day?
22 A. I spoke with Mr. Tobin specifically about the
23 New Hampshire project and what he knew about why it had
24 been stopped.
25 Q. Why did you call Mr. Tobin to talk about that?

104

1 A. Because, again, it was an unusual program. It
2 was — being stopped in the nature that it was was also
3 very unusual, and I thought that he might have some
4 insight as to why it was stopped.
5 Q. So after you tell Mr. Tobin that, what, if
6 anything, does he say to you?
7 A. He tells me that the chairman wanted it
8 stopped.
9 Q. And by chairman who do you mean?
10 A. Chairman of the New Hampshire Republican State
11 Committee.
12 Q. Do you remember anything else that you and Mr.
13 Tobin talked about in that telephone call?
14 A. No. I believe that’s what we talked about,
15 the reason for the program being stopped.
16 Q. Mr. Raymond, do you remember speaking to Mr.
17 Tobin at any point the rest of Election Day?
18 A. No, I do not.
19 Q. Now I’d like to go back to the $15,600 payment
20 that you talked about from the state committee. Did you
21 ever receive that payment?
22 A. Yes, we did.
23 Q. When did you receive it?
24 A. On Election Day, November 5th, 2002.
25 Q. Sir, this is Exhibit 4 again. I’d like for

105

1 you to take a look at the second page of it when it
2 comes up. Do you recognize this?
3 A. I do.
4 Q. What is it?
5 A. That’s the check that we received from the New
6 Hampshire Republican State Committee.
7 Q. And after you received it, what’d you do with
8 it?
9 A. I processed it like I process all checks from
10 clients.
11 Q. We’re pulling up page three of Exhibit No. 4,.
12 Blowing it up. Mr. Raymond, do you recognize this
13 document?
14 A. I do. It’s a deposit slip. So what I will do
15 is generally after receiving a check, I make a photocopy
16 of the check. I make out a deposit slip. I take both
17 down to the bank and deposit the check, return to the
18 office and make a photocopy of the deposit slip, put the
19 copy of the deposit slip and the copy of the check with
20 the invoice, and put the invoice in a folder called
21 accounts receivable paid.
22 Q. Sir, Election Day comes and goes. After
23 Election Day did you ever talk to Mr. Tobin again about
24 this phone jamming scheme?
25 A. Yes.

106

1 Q. When do you remember first talking to him
2 again about this scheme?
3 A. It would have been Wednesday after election.
4 Q. Tell us why you speak with Mr. Tobin that day?
5 A. My recollection is that I had a voice message
6 from him from the previous day and so that I was
7 returning his call.
8 Q. And when you returned the call to Mr. Tobin on
9 Wednesday, November 6th, what did you talk about?
10 A. We talked about the New Hampshire situation,
11 and most notably what he told me was that the check that
12 I had received and cashed had been forged.
13 Q. Did he tell you any more specifics about other
14 than he thought it had been forged?
15 A. No.
16 Q. Did he tell you any reason or did he describe
17 how he knew that the check had been forged?
18 A. He did not share that with me.
19 Q. How did you react to hearing that information?
20 A. I was concerned, but I wasn’t overall alarmed.
21 Having worked at a state party, I understand that
22 sometimes — sometimes the executive director is the
23 signatory on the account and sometimes they are not.
24 When they are not, sometimes it’s common practice for
25 the chairman to direct someone to sign the check simply

107

1 because he’s not nearby to sign the check and a bill
2 needs to be paid. So I was alarmed to some degree
3 because I had deposited it, and he was expressly telling
4 me that it was a forged check. But on the other hand, I
5 wasn’t too overwhelmed by it simply because it was
6 fairly common practice for others to sign checks at
7 state parties.
8 Q. Sir, after that conversation on November 6th,
9 did you and Mr. Tobin ever talk at some later point
10 about the phone jamming scheme?
11 A. One more time.
12 Q. When was that?
13 A. That was in middle or late November of that
14 year.
15 Q. Why did you reach out to Mr. Tobin at that
16 time?
17 A. I reached out to Mr. Tobin because I had
18 received a phone call from Lieutenant Roach of the
19 Manchester Police Department, and Mr. Roach —
20 Lieutenant Roach had asked us if we had done this
21 program and I told him that we had. He responded to me
22 by saying that there was nothing he could do about it,
23 but that I should be more careful next time and not do
24 it again.
25 Q. After you receive this call from the police,

108

1 why do you call Mr. Tobin?
2 A. Again, it’s an unusual call. I’ve never
3 received a phone call from law enforcement of any kind
4 on a phone program that we had conducted. So I called
5 Mr. Tobin simply to let him know that we had received
6 the phone call.
7 Q. And did you tell Mr. Tobin that it was in the
8 context of the New Hampshire project that you had worked
9 on?
10 A. Yes, absolutely.
11 Q. And what did Mr. Tobin tell you?
12 A. Well, his first two responses were pretending
13 not to remember the program at all.
14 Q. So you tell Mr. Tobin, I’ve gotten this call
15 from the police about the New Hampshire phone jamming
16 scheme, and what does Mr. Tobin tell you?
17 A. He says, “What are you talking about?”
18 Q. So then what do you say?
19 A. I said, “The New Hampshire phone program that
20 we had done that you referred your state party to us
21 for,” and he said, “I don’t know what you are talking
22 about.”
23 Q. And then after that did you say anything back
24 to Mr. Tobin?
25 A. Yeah. I more or less called his bluff and

109

1 said, “Jim, you do know what I’m talking about,” and at
2 that point he relented and acknowledged that he did.
3 Q. And did you discuss anything else in that
4 call?
5 A. No. That was pretty much the end of the call.

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Did James Tobin conspire in the NH phone-jamming? His lawyers claimed he had only the vaguest idea of what was planned.

Suppose Tobin’s lawyers were telling the truth about this. What kind of conversations would you expect an innocent person to have with Allen Raymond once the phone-jamming had been stopped? Wouldn’t an innocent person be shocked or upset? Instead, James Tobin was quite matter-of-fact until the police came snooping around–at which point he tried, unsuccessfully, to claim he didn’t know bupkis.

Tobin’s lawyers worked hard to discredit Allen Raymond’s testimony, and very successfully undermined prosecutors’ claims of an October 18 phone call. But the post-phone-jamming conversations Raymond described also serve to tell us a lot about Mr. Tobin’s involvement in the plan.

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The New York Times noticed!:

..the watchdogs are right about this: the news media, prosecutors and the general public should demand more information about what happened.

The parallels drawn with Watergate are a good place to start:

1. The return of the “second-rate burglary.” The New Hampshire phone-jamming scandal is being dismissed as small-time, state-level misconduct, but it occurred at a critical moment in a tough election.

In November 2002, Republicans were intent on winning a Senate majority so they would control the White House and both houses of Congress. They saw the Sununu-Shaheen race as pivotal. On Election Day morning, the phone lines were jammed at the Democratic offices and at a get-out-the-vote operation run by a firefighters’ union. The police were called, and the lines were eventually freed up. The election wasn’t as close as expected. Mr. Sununu won, and Republicans retook the Senate.

2. The return of the high-priced lawyer. Aficionados of the Watergate connection like to point out that one of the first clues that the Watergate burglars were not ordinary small-time crooks was the presence of a slick lawyer in an expensive suit at their first court appearance. In the New Hampshire case, Mr. Tobin was represented by Williams & Connolly, a pre-eminent white-collar criminal law firm. The legal bills, which published estimates have put at more than $2.5 million, were paid by the Republican National Committee. Democrats are asking why the committee footed the bill, if Mr. Tobin was a rogue actor who implicated the national party in a loathsome and embarrassing crime.

3. The return of “follow the money.” (As if it ever left.) New Hampshire Democrats pored over the filings of the New Hampshire Republican Party and found three contributions for $5,000 each, all shortly before the election. One was from Americans for a Republican Majority, Tom DeLay’s political action committee. The other two were from the Agua Caliente Band of Cahuilla Indians and the Mississippi Band of Choctaw Indians, tribes that were clients of Jack Abramoff. Those checks add up almost exactly to the cost of the phone jamming.

Thank you, Adam Cohen! Dear blogreaders, please link to this NYT Opinion piece and email a copy to friends.

And a big thanks from me to Dave Winer who emailed me this story at 2:36 a.m., and is now giving me kudos for pursuing Phone Jammer Gate. But I’ll bet Adam Cohen first heard about this story on Scripting.com…

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Republicans paid telemarketers to jam the phones of NH Democrats on Election Day, 2002. We might never have heard a word about any of this, except that one of the rides-to-the-polls phones jammed was that the Manchester, NH Firefighters’ Union. The Manchester, NH Police started pushing for answer–who had done this and why? After several months of being stonewalled, the police asked the Feds to step in–and this story broke, for the first time, in the Manchester Union Leader in February of 2003.

Below is a sample from the official transcript of James Tobin’s trial for December 7. Sworn testimony from phone-jammer Chuck McGee reveals that the FBI never contacted him on the matter until August of 2003. Having contacted him in August, they finally got around to interviewing him in December of 2003, more than a year after the events occurred.*

All the perpetrators, having known since February of 2003 that they would be questioned, made full use of this delay to have foggy memories of who said what to whom. In fact, in the excerpt from Chuck McGee’s testimony, you can see that his memory has gotten quite a bit worse between December 6 and December 7 of 2005. Things that were clear in McGee’s Grand Jury testimony are now such a hazy memory that the US Attorney has given him a printout of his Grand Jury testimony to refresh his memory. And “Elisha” (almost surely Alicia) Davis makes a cameo appearance…

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2 Q. [US Attorney Andrew Levchuk] Well, you’ve testified that you told him you
3 wanted to jam phone numbers, you said yesterday, or you
4 wanted to disrupt communications.
5 A. [Chuck McGee] I’m trying to tell it as best I remember, Mr.
6 Levchuk. I’m sure — you know, I don’t know if I used
7 the word “dems,” “democrats,” “them,” “the other side.”
8 Q. In other words, it was not the Daughters of
9 the American Revolution whose phones you wanted to
10 disrupt.
11 A. Correct.
12 Q. And you made that clear to Mr. Tobin, didn’t
13 you?
14 A. I’m fairly certain today that I did.
15 Q. And instead of dissuading you, Tobin helps you
16 find a guy who can do this for you?
17 A. He gives me a name and number.
18 Q. And he says in sum or substance this is a guy
19 who can help you?
20 A. I presume that’s what he meant since he gave
21 me the name and number.
22 Q. Well, your testimony yesterday and in the
23 grand jury was that he said it; correct?
24 A. Okay. It’s three years ago. I’m trying to
25 remember it as best I can.

55

1 Q. Well, you said the grand jury was closer in
2 time; correct?
3 A. Correct.
4 Q. And in the grand jury isn’t it true you
5 testified that the page you just looked at, they said
6 this is someone who can help you, who can help you out?
7 A. Yes.
8 Q. At any point does the topic of a lawyer come
9 up in your discussion with Jim Tobin?
10 A. No.
11 Q. So never does legal counsel, a lawyer, come up
12 in your discussion with Jim Tobin?
13 A. No. Again, the conversation was very brief.
14 I just asked Jim if he knew somebody. He gave me a name
15 and a number.
16 Q. I asked you a yes or no question. Lawyer
17 didn’t come up, did it?
18 A. Sorry. No, lawyer did not come up.
19 MR. LEVCHUK: And if I can just take a second,
20 your Honor.
21 Q. You had I think first talked to Cathy Fuller,
22 special agent of the FBI, back in December of 2003; is
23 that correct?
24 A. I believe she first called my home in August
25 of 2003.

56

1 Q. There was a conversation with her, interview
2 or proffer, if you will, at some point that year?
3 A. December.
4 Q. And during that isn’t it true you referred to
5 Jim Tobin as your lifeline to the White House?
6 A. I can’t recall those words at this time.
7 Q. But would that be accurate to say, that Jim
8 Tobin was your lifeline to the White House, if you will?
9 A. I don’t know if — he would have been a person
10 that we could have contacted to help us communicate with
11 the White House, but we also had a lady by the name of
12 Elisha Davis who was a contact of the White House.

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Update: Hurray for NH! The Portsmouth (NH) Editorial today asks some very good questions:

Is it too much to ask for Sen. Sununu [whose election benefited from the phone-jamming] to call for full and absolute disclosure? Or the same from Sen. Judd Gregg, his Republican colleague who also represents us?

Is it too much to ask the White House and the RNC to do what they can to resolve remaining questions?

Is it too much to ask that the national press get interested in why this case is worth the millions of dollars the RNC is paying lawyers to keep it hushed up?

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*Correction: Chuck McGee was charged in early July of 2004 and pled guilty on July 28. He gave testimony to the Grand Jury on July 28, 2004 in support of his plea agreement with the government. Therefore my inference above that nobody talked to him before August was mistaken.. The December 2003 interview with the FBI came more than a year after the November 5, 2002, phone-jamming, and more than six months before McGee was charged for his role in that crime.

After the plea agreement, however, severe problems cropped up between McGee and the prosecutors. McGee decided to serve his 7-month prison sentence at once, cutting off the possibility of having it reduced for future testimony. He asked the Feds for help, however, in being able to serve his sentence near home, where his family could visit, in a minimum-security prison. The feds, however, did not persuade the Bureau of Prisons on this, which then chose to send McGee to a maximum-security prison in Brooklyn, NY. Not surprisingly, McGee feels that the government treated him badly.

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On the last day of testimony in James Tobin’s trial, his defense lawyers surprised the US Attorney with a brand-new witness, GOP activist Kathleen Summers, who testified that Tobin’s October 18 phone call to Allen Raymond was made at her request–and she had a piece of October 18 email supporting her statement.

The US Attorney was completely blind-sided by this testimony. They had leaned on that two-minute phone call again and again as their one piece of corroborating evidence for Allen Raymond’s claim that James Tobin had specifically asked him to help Chuck McGee to jam Democrats’ phones.*

Ironically, October 18 was never a very good guess for the timing of Tobin’s phone call to Allen Raymond. McGee testified he got the idea from a Democratic get-out-the-vote pamphlet. NH Democrats don’t have the money to mail out such pamphlets to voters in mid-October. McGee testified that he had tried to remember when, exactly, he talked with Tobin. All he could remember was that it happened on a weekend when Rudolph Giuliani, President Bush, and Laura Bush were all visiting NH. Minimal googling reveals that Giuliani visited NH in 2002 on the weekend before Election Day–and only on that weekend:

• Nov 1 (Fr) GW Bush at Pease for one hour
• Nov 2 (Sa) Laura Bush in Nashua with Sununu
• Nov 4 (Mo) Giuliani in Nashua for Sununu
• Nov 5 (Tu) Election Day, phone-jamming

The Senate Majority Project’s Exhibit A shows James Tobin was in NH every day from Nov. 1 through Nov. 4. If Chuck McGee first told Tobin his plan at this time, all of a sudden lots of things start to make more sense:

• Why McGee didn’t tell his boss John Dowd of the plan until November 4
• Why Allen Raymond consented to run the operation based on email sent to him, and a check FedExed to him, on November 4. If the plot was hatched in October, wouldn’t Raymond have demanded to be paid up front?
• Why James Tobin’s call to Raymond would have been made in early November rather than mid-October.

This blogpost is long enough, but it all makes sense this way. Chuck McGee has lunch with James Tobin and hard-nosed lobbyist Darrell Henry on October 23. (I Flickred scans of both sides of that envelope.) Their conversation suggests to him that James Tobin is the kind of person who might be sympathetic to his phone-jamming idea. This meeting also creates some honest confusion in Chuck McGee’s mind that he might have talked with Tobin in mid-October.

Roll on to the weekend before election. McGee runs into Tobin and floats his new idea–Tobin quickly passes it off to Allen Raymond, a former colleague who’s just (narrowly) escaped as an unindicted co-conspirator in a different telemarketing scam.

On Election Day, when the phone-jamming plot gets stymied, McGee complains to Darrell Henry because they already know each other from that Oct. 23 lunch. As to how Darrell Henry knew about the phone plot–it’s just one more thing that the US Attorney’s office ought to have figured out, but didn’t.

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* Tobin’s lawyers strongly implied that Raymond was lying–and they kept James Tobin carefully off the stand so that nobody could ask whether he had or hadn’t. But here’s what Raymond said, way back when Tobin’s name was still a secret closely held by the Republicans and the US Attorney: (Manchester Union Leader, July 13, 2004):

At Raymond’s plea hearing on June 30, Hinnen told U.S. District Court Judge Joseph DiClerico Jr., that in late October 2002, Raymond “received a call from a former colleague who was then an official in a national political organization. The official indicated that he had been approached . . . by an employee of the New Hampshire Republican State Committee with an idea that might give New Hampshire Republican candidates an edge over New Hampshire Democratic candidates in the upcoming election” — jamming their phone banks.

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James Tobin’s defense attorney often interrupted the US Attorney with the objection that a question was “leading.” To quote an online legal resource, “A leading question suggests the answer one expects to hear; “You were at the victim’s home that night, weren’t you?”. The lawyer should not be doing the testifying.”

Chuck McGee was a witness hostile to the US Attorney and friendly to James Tobin. In order to give jurors the impression that James Tobin had not heard anything about blocking rides to the polls, his lawyer asked one leading question after another–without a single objection from the US Attorney.* Here’s what went on December 7, the second day of James Tobin’s trial:

Q. [Dane Butswinkas, Tobin’s defense attorney] You never discussed
24 Rides-to-the-Polls Program with Jim Tobin, did you?
25 A. [Chuck McGee No.

[page] 11

1 Q. At the time you spoke with him, you didn’t
2 intend to prevent people from getting rides to the
3 polls, did you?
4 A. No.
…
12 Q. And you didn’t enter into any agreement with
13 Jim to injure voters by stopping them from getting rides
14 to the polls, did you?
15 A. I was just asking for the name of a vendor.
16 Q. That was never a subject of any conversation
17 you had with Jim Tobin, was it?
18 A. Which part, sir?
19 Q. The idea of stopping people from getting rides
20 to the polls on Election Day.
21 A. Absolutely not.

I’m sure that even a non-lawyer can see quite a few places where defense counsel was leading the very willing witness–with not one objection from the supposedly-prosecuting US Attorney. As a direct result of this testimony, the jury later acquitted James Tobin on the most serious–and the most appropriate–charge against him, conspiracy against the rights of voters.

And yet contrast McGee’s response to that series of leading questions to his response to the US Attorney when questioned the previous day, December 6:

[page 83]
1 Q. [US Attorney Andrew Levchuk] Did there come a point when you received
2 something in the mail about get-out-the-vote plans for
3 the other side, for the democrats?
4 A. [Chuck McGee] To my surprise I received a mailing at my home
5 urging us to go out and vote for democratic candidates
6 on Election Day. My wife and I are both registered
7 republicans.
8 Q. And what specific — and I understand it’s
9 been some time. What do you recall about what was in
10 that flyer?
11 A. Had some photos and talked about issues. I
12 think it had a phone number if you wanted a ride on
13 Election Day.
14 Q. Ride to the polls?
15 A. I believe so.
16 Q. You see this. Do you get an idea from it?
17 A. I got the — it reminded me that obviously the
18 other side, the democratic party, was going to have
19 their own get-out-the-vote efforts on Election Day, and
20 I thought — I paused and thought to myself, I might
21 find out — I might think of an idea of disrupting those
22 operations.
23 Q. And by disrupting, what do you mean?
24 A. Well, eventually the idea coalesced into
25 disrupting their phone lines on Election Day.

84

1 Q. Fair to say that idea was given to you because
2 there was a get-out-the-vote phone number in that flyer
3 that you received; correct?
4 A. That was the impetus.

If McGee and Tobin weren’t blocking ride-to-the-polls lines, why would they even bother to block any phones? In 2002, political operatives all carried cellphones, even if many normal people still didn’t. You couldn’t, wouldn’t disrupt the ability of Democrats to talk to each other by jamming 6 landlines. Nobody would be so stupid as to attempt it.

It would have been nice if the US Attorney had thought to make this point.

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You can buy a full set of trial transcripts from the US District Court in Concord, NH. I’d encourage some journalists to make that investment.

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* I apologize for my criticism of the US Attorney’s failure to object. My sister Marie, who (unlike me) is an attorney, read through the trial transcript and corrects the above as follows:

The leading question issue is, as you have stated, based on the principle that the witness should testify–not the lawyer.

The general rule on asking leading questions is that the attorney is prohibited from asking them on the direct examination of his own witness and the opposing attorney is free to ask them on cross-examination. An exception exists, where the witness has been found by the court to be an “adverse”or “hostile” witness. In that case, the court may allow leading questions on direct.

That was what happened in the Tobin trial when McGee testified. Judge McAuliffe found that McGee was, in fact, adverse to the Prosecution, and so he allowed the Prosecutor some latitude in questioning him.

On cross-examination, the defense (Tobin’s lawyers) asked obvious and damaging (to the prosecution) leading questions — questions that were, as you’ve pointed out, in direct contradiction of his testimony on direct. McGee jumped on them like he was jumping on a life raft. Actually, it was rather amusing to read: here is this guy who plead guilty to the phone jamming saying “Oh no, I never discussed with Jim my plan to jam the ride to the polls number.” Yeah, right!

The Prosecution did not object to any of the questions. They could have argued that since McGee was a witness “hostile” to the Prosecution and friendly to the defense, leading questions on cross-examination were improper in this case–but they never tried.

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