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

Finally somebody in DC has noticed the conflict of interest that may have slowed and short-circuited Department of Justice investigation of the phone jamming scandal!

The senior Democrat on the House Judiciary Committee asked the attorney general Friday to appoint a special counsel to investigate the jamming of get-out-the-vote phone lines in New Hampshire in 2002…
“The Department appears not to be reviewing the extensive contacts between the plotters of the phone jamming and high-level Republican officials,” Conyers wrote.

Senate Majority has posted the letter’s full text.)

Thank you, U.S. Rep. John Conyers of Michigan!

Why did Duke Cunningham stop cooperating with investigators? Because federal prosecutors rushed into the sentencing phase of his trial, leaving him no motivation to assist them in prosecuting other wrong-doers.

“If I were Duke Cunningham, frankly, I wouldn’t be cooperating,” Melanie Sloan, a former federal prosecutor and the Executive Director for Citizens for Responsibility and Ethics in Washington, told me. “They sentenced him too fast — once you’re sentenced, you’re done. There’s no more carrot and stick.”

Meanwhile, in NH, the US Justice Department is racing to sentence phone-jamming felon James Tobin, cutting off his motivation to testify against others who may have played a significant role. (Senate Majority has more, including sentencing recommendations from the US Attorney, Tobin’s defense team, and the NH Democratic Party.)

The head US Attorney for the District of NH is Thomas P. Colantuono, appointed to his post by George W. Bush in 2001. *

In the 2004 Presidential campaign, Colantuono’s wife made election-law news (Concord Monitor, October, 2004):

It’s illegal for clergy to campaign for a candidate on church property, but that didn’t stop a staffer for the Republican National Committee from soliciting help re-electing President Bush last week.

In an e-mail to “pastors, church leaders and ministries,”Pam Colantuono, wife of Tom Colantuono (a Bush-appointed U.S. attorney for New Hampshire), asked clergy for help getting a pro-Bush flier to parishioners. Colantuono was clear about how priests could do this without breaking the law.

“Please place these in your parking lot, or when you have a church activity have someone hand them out outside the church. This is very important,” the e-mail read. It continued in bold letters: “Pastors, do not display within the church and make sure you are not handing these out personally within your church. Assign someone to do this for you. We want to protect you.”

Colantuono also asked clergy to keep this effort “underneath the radar as we do not want any negative press.”

The flier was paid for by the New Hampshire Republican State Committee. In her e-mail, Colantuono said God had told her in her prayers that it would win the election for Bush.

The flier is pretty standard fare. It compares Bush and Democrat Sen. John Kerry on several “family values,” namely partial-birth abortion, pro-life judges and parental notification.

David Lamarre-Vincent, executive director for the New Hampshire Council of Churches, hadn’t seen Colantuono’s e-mail but was concerned when he heard its contents.

“This is troubling because often religious leaders don’t know where the line is,” Lamarre-Vincent said. “And out of no mal-intent, they might say or do something that crosses the line.”

Jayne Millerick, chairwoman of the state committee, defended the flier and Colantuono’s efforts to circulate it to church-goers.

“It’s something we are pretty proud of,” she said. “It really points out in a clear way where the candidates stand on issues that are important to folks of faith.”

The RNC paid Pam Colantuono a $4,000 for “Political consulting” in 2004. She also addressed the NH Right to Life group on behalf of Bush-Cheney ’04, but it’s not clear whether or not she worked with RNC executive James Tobin, who was New England chairman of Bush-Cheney ’04 during that time.

Anyway, if you have been wondering…

• why the US Attorney’s Office has moved so slowly in its investigation of the 2002 phone-jamming scandal…
• why the US Attorney never indicted or even revealed the name of phone-jammer James Tobin until NH Democrats forced the issue…
• why the US Attorney has actively interfered with the civil suit filed by NH Democrats …
• why RNC defense attorney* * Robert Kelner seems to have an inside line on what the US Attorneys are doing…

…one possible explanation could be that the chief US Attorney in NH may have personal and/or political ties to many of the people his team is supposed to be investigating.

* Interesting news story about the enthusiastic bidding of GOP Presidential hopefuls for support from NH politicians (January, 1999):

Conservatives, such as newly elected Executive Councilor Thomas P. Colantuono, were among those who got the most big-name support. He received checks from committees affiliated with Quayle, Sen. John Ashcroft (R-Mo.), publisher Steve Forbes, conservative activist Gary Bauer, former Tennessee Gov. Lamar Alexander, and Sen. Robert C. Smith (R-N.H.), a potential favorite son.

    The support paid off: Colantuono’s close win over an incumbent Democrat returned the five-person council to unanimous GOP control.

    Colantuono said he had not solicited the money, but called it a “pleasant addition” to his campaign. He said it was too early, however, to decide whom he would support in 2000.

In fact, Colantuono endorsed George W. Bush.

* * One of the few individual donors to Tom Colantuono’s unsuccessful bid for a seat in the US Congress was Ovide P Lamontagne, an attorney with Devine, Millimet, and Branch who is defending the NH Republican Party against the phone-jamming civil suit filed by the NH Democrats.

Mike Gehrke at SenateMajority.com calls BS on yet another Republican bigshot who claims a lot more distance from the phone-jamming scandal than he deserves. Convicted phone-jamming felon James Tobin of Maine had impressive GOP affiliations of his own: National Republican Senatorial Campaign Committee ’02 (New England regional director) Bush-Cheney ’04 (New England campaign chairman) Bush Ranger ’04 (as were Jack Abramoff, Kenneth Lay, and Duke Cunningham) Beneficiary of million$ in legal defense funds from the Republican National Committee But there are many bigger political fish than James Tobin in the murkier parts of the national politics pond. Thanks to Mike Gehrke and the NH Democratic Party for shining a spotlight into places no spotlight has gone before–regions much closer to DC than to NH!

Bonus link: Great political rant by Josh Marshall of TalkingPointsMemo.

AP reporter Larry Margasak followed the money that paid for Republican dirty phone tricks during the 2002 federal elections. He discovered that an early prime investor in GOP Marketplace, Allen Raymond’s telemarketing services company, was GOP insider Haley Barbour. According to Wikipedia, Barbour held the same position in Ronald Reagan’s White House that Ken Mehlman had when his White House office got those hundreds of phone call from busy phone jammers:

…Barbour was President Ronald Reagan’s Director of the White House Office of Political Affairs for two years…Barbour later served as chairman of then-Governor George W. Bush’s presidential campaign advisory committee in 2000…

In 1991, Barbour helped found Barbour, Griffith & Rogers, a Washington, D.C.-based lobbying firm, with Lanny Griffith and Ed Rogers, two lawyers who formerly worked in the George H. W. Bush administration. In 1998, Fortune Magazine named Barbour Griffith & Rogers the second-most-powerful lobbying firm in America. In 2001, after the inauguration of George W. Bush, Fortune named it the most powerful.

Margasak’s article also details the other known 2002 GOP Marketplace dirty phone trick, attack calls made during the Super Bowl.

In related and recent news, Republicans got caught attacking Democrats with anonymous robocalls in Illinois. They defended their action (after denying it) by claiming that a loophole allowed them to do it.

Last week, a few Democratic House members said their constituents were getting
prerecorded phone calls at home, in which a voice would allege that the
legislator was cutting state pensions and veterans’ funds. The recording would
implore the listener to tell the legislator to oppose the budget practices of
Gov. Rod Blagojevich, a Democrat.

The calls didn’t identify who they were from. After initial denials, Republican
House officials last week acknowledged they were behind the phone campaign.
They said the program, which cost “less than $10,000” in party funds, was
designed to put pressure on Democrats to stop backing what Republicans see as
dangerous budget maneuvers by the Blagojevich administration.

The exploitiation of loopholes like this is just what you’d expect from a party hierarchy where lobbyists are accepted and welcome partners in national politics.

Newspapers and this blog have talked about three appeals made by James Tobin’s lawyers after his conviction for Phone Jammer Gate. Are they meaningful objections… or just one more excuse to keep Tobin from being questioned under oath in the civil suit against the RNC?

Now, with her permission, I welcome guest blogger Marie Devine, Attorney at Law, whose (informal) opinion is more educated than mine.

Hi Bets,

Thanks for the documents.

First, I must give the following “caveat”: I do not now and have never practiced criminal law in either State or Federal courts. My own litigation experience is mostly in civil litigation and though I’m licensed to practice in NH. I have not actively practiced law in NH since 1987. Most of my legal experience has been in the State of Florida.

That said, I can provide some general legal information that is pertinent.

As to our earlier discussion on news reports that Tobin has “appealed”:

His attorneys have not filed an “appeal”. What they have filed are post-judgement motions in the Federal District Court of NH –which was the trial court. An “appeal” is an action filed in the court having appellate jurisdiction over the trial court, which in this case would be the United States Court of Appeals for the First Circuit (the circuit within which NH sits). The US Court of Appeals for the First Circuit is located in Boston. Appeals from rulings made by the Courts of Appeals go to the US Supreme Court in Washington.

Anyway, the Motions filed ask for: “Arrest of Judgment”, “Acquittal”, and a new trial. The arguments put forth in the Motions are all issues that were considered and denied by the trial judge during the trial. In other words, they are a rehash of the same old defense arguments. Such motions are rarely granted by trial judges, who have already carefully considered the issues, the facts, and the law and who have already ruled on them.

Th docket reveals that these motions were argued before the judge on March 17, 2006 and “taken under advisement” by the Judge. Apparently, he has not yet ruled.

So, the case basically sits in limbo right now. Appeal, at this point, would be premature, as the trial court is still considering the post-judgment motions. Works for them!!

Love, Ri

RNC Chairman Ken Mehlman defended the phone-jammers’ calls to the White House as just plain politics as usual: “…during the 2002 election cycle, my staff and I regularly communicated with competitive Congressional campaigns and Republican Party organizations…Alicia Davis, my deputy responsible for the Northeast, frequently communicated with the New Hampshire State Party, the RNC and others.“

The only problem with that “defense” is that letting US taxpayers foot the bill as White House staffers work for the Republican party comprehensively violates the Hatch Act–for example,

…a District of Columbia employee may not perform partisan campaign duties during the course of the employee’s normal business day if the employee is: (1) on duty; (2) in any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof; or (3) wearing an official uniform or insignia.

…an employee may not write campaign speeches, make political calls, or send political emails on behalf of a partisan candidate or political party while the employee is in any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof, even if he is not “on duty” for purposes of the Hatch Act.

The NH Democrats have filed a civil suit asking the GOP to reimburse them for the cost of their GOTV efforts in 2002. I’d like to see something else added to the lawsuit–for the RNC to reimuburse US taxpayers for the campaign activities Ken Mehlman brazenly admits were carried out from within the White House itself.

In 2002, the phone-jamming was secret. In 2003 and 2004 and 2005, a few papers covered it for a NH audience. Finally, in 2006, the story breaks national–after some hard digging by TPM Muckraker and the Senate Majority Project and solid articles in the Boston Globe and New York Times.

Here’s what’s new, in just the past couple of days…

Senate Vote Inquiry Widens as Democrats Probe White House Link (Bloomberg, April 24)

Money quote: “Democratic Senators Patrick Leahy of Vermont and Edward Kennedy of Massachusetts wrote U.S. Attorney General Alberto Gonzales on April 20 seeking information on any links Abramoff or the White House may have had to the phone-jamming scheme.”

How the GOP Lost Its Way (Washington Post, April 22)

Money quote: “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.”

GOP Phone-jamming scandal has legs (Newsweek, April 21–which has now mysteriously changed the story’s title to “Winning at any cost”)

Money quote: “A little noticed scandal in New Hampshire about phone-jamming is gaining traction. Initially dismissed as a petty political trick, it led to the trial and conviction for telephone harassment last December of the New England political director for the Republican National Committee, James Tobin. That in itself would barely register on anybody’s radar except Tobin was represented by one of Washington’s white shoe law firms, Williams & Connolly, and his legal fees were $2.5 million. The Republican National Committee picked up the tab, which suggests this may not have been a rogue operation. Was Tobin’s high-priced defense an effort to keep him from ratting out his contacts in the Bush White House?”

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.

* 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.

* * 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.

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.

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.

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.