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

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.

* 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.

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.

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.

* 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.

One year ago, I was back in the 16th century, blogging “How Descartes made me stop being late for morning assembly.“

In 2004, I blogged my ex-Christian praise of Good Friday…No, I’m just not ex-Christian enough not to notice the day.

On a much more joyful springtime note, go listen to Dave Winer’s round-about-a-year-ago podcast of himself singing “It’s a Small World After All.” Then, as Dave said then (and I agree), “appreciate the philosophy.”

Contrary to the RNC’s claim that “Jim Tobin told us he was innocent”, his lawyers fought a narrow and legalistic battle about the exact meaning of the statutes in question.

• They argued at length that the phone calls would only be harassing if they were intended to frighten people.
• They argued that Tobin didn’t know the phones would be jammed by repeated phone calls, he might have thought they’d be jammed by some other method.
• They argued that Tobin didn’t know that the phones to be jammed were get out the vote lines, he might have thought it was a plan to interfere with other Democratic GOTV stuff.
• They told the jury that knowledge a crime is going to be committed does not constitute conspiracy.
• They told the jury the state had not proved that James Tobin made a direct call to Allen Raymond about Chuck McGee and his plan–even though the clear language of their appeal makes it clear they knew exactly that did happen.

Thanks to the NH State Legislature for clearing up that little matter for people who are so ethically challenged that they don’t understand that what Tobin and his cronies did on Election Day 2002 was wrong.

Interestingly, the vote was unanimous. Not one legislator was confused or uncertain about whether such behavior was basically OK. Too bad James Tobin and his RNC backers still don’t agree.

Thanks, David! Will political reporter Rick Klein of the Boston Globe break this story open, as Woodward and Bernstein did Watergate?

Klein’s article in the National section of April 13’s Globe broke some interesting ground, including RNC lawyer Robert Kelner’s claim that the Democrats’ lawsuit is proceeding now only because 2006 is an election year.

The Democrats filed their lawsuit in 2004. Since then, they have repeatedly tried to push forward with it, only to be stalled and stymied by the US Department of Justice, which claimed that letting the Democrats’ suit go forward would harm their own prosecution of wrongdoers.*

Moving at the pace of a snail with bunions, the US DOJ did not indict co-conspirator James Tobin until December of 2004, and did not bring his case to trial until December of 2005. If the Democrats’ lawsuit is only now unfolding in 2006, this is not due to any skullduggery by the Democrats.

* To quote from the Union Leader of October 15, 2004:

“Somebody made a decision to try to assist the Republican Party in stonewalling us,” said Democratic Party Chairman Kathleen N. Sullivan.

She said it was “shocking” that the justice department would “interfere in this small New Hampshire case” when federal prosecutors haven’t stopped discovery in civil cases against Enron, Tyco and WorldCom while parallel criminal cases are under way.

“We find this late intervention by the Department of Justice to be a sorry and sad reflection upon that department,” said Steven M. Gordon, attorney for the Democratic Party.

“How did he know that?” How did RNC lawyer Robert Kelner have access to secret backstage information from the US Attorneys who prosecuted James Tobin? John DiStaso is so far the only one with this story:

Robert Kelner, an RNC lawyer in the phone-jamming civil suit, added an interesting twist after Tuesday’s superior court hearing.

Kelner told WMUR that the federal Justice Department has long known about the calls to the White House, investigated the calls and “did not bring any charges.”

“How did he know that?” [NH Democratic leader Kathy] Sullivan asked.

The Justice Department has never commented publicly about its investigation. A White House spokesman said this week, “As policy, we don’t discuss ongoing legal proceedings within the courts.”

“So, is the White House or the Department of Justice willing to speak to Mr. Kelner and no one else?” Sullivan asked. “I don’t know how else he would know that.”

It’s a good bet that the US Department of Justice isn’t leaking its secrets to Democrats. Is the DOJ now a wholly-owned subsidiary of the Republican Party? Their slow and incompetent prosecution of James Tobin in the NH phone-jamming scandal suggests just that.

4/18/2006 UPDATE: Mike Gehrke of Senate Majority Project filed a FOIA request demanding the release of all findings from the DOJ investigation of White House involvement in phone-jamming scandal.

Picture this: US Attorneys in Concord, NH put pressure on an employer who was footing huge legal bills for an ex-employee. Such payments, pointed out the US attorney, are clear evidence that the ex-employer has something to hide. Less than two weeks ago, the WSJ wrote up this story. (March 28, 2006 WSJ, “U.S. Pressures Firms Not to Pay Staff Legal Fees”). Sadly, the case in point wasn’t the NH phone-jamming. The Republican National Committee continues to pay the legal bills for convicted felon James Tobin–up to at least $2.3 million so far. But the US Attorneys prosecuting Tobin ignored the clear implication that his million-dollar DC-lawyer defense team was protecting much bigger fish than Mr. Tobin. To quote Josh Marshall, “..the fact that the RNC is paying Tobin’s legal bills means either that he was acting under authorization or, frankly, that they’re trying to keep him quiet. There’s really no other reasonable explanation of this.”

From that WSJ article:

The fee-payment issue has gained prominence in recent years, following a 2003 U.S. Justice Department memo that advised prosecutors to credit companies that cooperate with the government in an effort to avoid indictment. The memo, written by former Deputy Attorney General Larry Thompson, advises that a company’s willingness to advance legal fees to “culpable employees” may signal a lack of cooperation…

The Corporate Counsel blog has more on the subject:

“If you are convicted of crime and it damaged the company, the company shouldn’t pay your legal expenses,” says Charles Elson, director of the John L. Weinberg Center for Corporate Governance at the University of Delaware….

The SEC lately has taken a harder line on companies paying employee legal fees. Last May, it fined Lucent Technologies $25 million for not cooperating in an investigation, partly citing the company’s legal-fee payments for employees. Lucent didn’t admit or deny wrongdoing.

In a recent speech, the SEC’s outgoing enforcement chief Stephen Cutler .. said paying employees’ legal fees insulates them from the consequences of wrongdoing. “If an individual can look to his/her employer to pay the freight,” said Mr. Cutler, “what good have we done?”

If still-stonewalling Ken Mehlman and Karl Rove want to promote clean elections, they should reconsider the message they’re sending their troops by footing James Tobin’s legal bills.

TPM Muckraker Paul Kiel has a scoop:

The AP, in their story on calls to the White House, noted one call in particular, a 17 minute call from Jayne Millerick, then a GOP strategist working on the 2002 election. This was with the same number at the White House’s Office of Political Affairs that James Tobin called so frequently.

The AP simply noted the call, and reported Millerick as saying that she “did not recall the subject” and that she hadn’t learned of the plot until after the election.

But details from the phone records analyized by the Senate Majority Project suggest that Millerick was fully aware of the plot to jam the New Hampshire Democratic Party’s phone lines..Millerick made a run of calls on the day of the jamming that suggest that she was looking for legal advice.

This blog’s readers may recall Jayne Millerick’s protestations, back when the phone-jamming scandal hit the newspapers, of surprise and innocence. She wanted to talk instead about a new code of ethics she and her GOP friends were all going to sign. Search this news story archive for her name, and watch her story mutate over time.

Go, TPM Muckraker, go!

Update: More on this story and a link to Millerick’s phone records at SenateMajority.com.

Federal Election campaign, 2002

Chuck McGee, Executive Director of the New Hampshire Republican party, gets a flyer in the mail from NH Democrats with phone numbers to call if you want a ride to the polls. McGee gets the idea to “disrupt enemy communications” by jamming these numbers. He approaches several telemarketers, all of whom refuse to help him, and is stymied until James Tobin offers to help him. James Tobin is the New England regional head of the National Republican Senatorial Committee.

10/18/2002

James Tobin makes a two-minute phone call to Allen Raymond. (Raymond testified that Tobin had phoned him to tell him to expect a phone call from McGee. Defense witness Kathleen Summers testified that Tobin had a different reason to call.)

10/23/2002

Tobin’s expense account shows a payment of $39.16 with the names Chuck McGee, Darrell Henry, and Chairman Dowd (head of NH State Republican Party)

10/28/2002

Abramoff clients Agua Caliente Band of Cahuilla Indians (California) gives $5,000 to NH Republican State Committee.
http://query.nictusa.com/cgi-bin/dcdev/forms/C00136457/95264/sa/ALL

10/28/2002

Abramoff clients Mississippi Band of Choctaw Indians gives $5,000 to NH Republican State Committee.

11/1/2002

Tom DeLays’s ARMPAC gives $5,000 to NH Republican State Committee.

11/4/2002

McGee sends $15,600 check from NH Republican State Committee check to pay for phone-jamming. He also sends Raymond an email with the 6 phone numbers to jam.

11/5/2002

Election day phone-jamming plan unravels, as Manchester Police and NH Republican John Dodds bring it to a halt. James Tobin makes two dozen phone calls to the White House office of public affairs between 11/4 and 2:17 a.m. on 11/7.

mid-November, 2002

Manchester, NH police contact Allen Raymond’s company; Raymond phones Tobin; Tobin at first pretends not to know what he’s talking about (Allen Raymond’s testimony)

2/7/2003

Federal investigators have been called in by Manchester, NH police. Manchester Union Leader breaks the phone-jamming story, and Chuck McGee resigns as Executive Director of the New Hampshire Republican party.
http://www.talkingpointsmemo.com/archives/week_2003_02_02.php#000625

2/20/2003

According to the Feb. 20 Union Leader, the GOP Marketplace attorney said “the firm hasn’t heard from federal or state investigators, either.”
http://www.theunionleader.com/articles_show.html?article=18369

December, 2003

FBI agent first interviews Chuck McGee to ask him about his role in the phone-jamming. (Chuck McGee’s testimony)

2/17/2004

James Tobin donation to Ted Poe (Texas) $1,000

3/30/2004

James Tobin donation to John Eric Ensign (NV) (giving Tobin’s Maine address) $500

6/9/2004

James Tobin donation to John Eric Ensign (NV) (giving Tobin’s DC address) $500

6/24/2004

James Tobin donation to Bob Beauprez (CO) $500

6/30/2004

Allen Raymond pleads guilty, admitting he took $15,600 from the NH Republican Committee to pay for a phone bank to make repeated hang-up calls to NH Democrats and Manchester firefighters, blocking their get-out-the-vote effort on Election Day 2002.

6/30/2004

Prosecutor Todd Hinnen tells the court that had Raymond chosen to go to trial, the government would have been able to prove that “in late October 2002, the defendant, Allen Raymond, then the president of Virginia-based political consulting company GOP Marketplace, LLC, 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 (sic) candidates in the upcoming election.”

6/30/2004

James Tobin donation to Tom Delay (TX) $2000 (More on Tobin’s donations to friends of DeLay and Abramoff.

7/1/2004

Union Leader story discloses that Raymond worked with “co-conspirators known to the government,” but does not identify them.

Early July, 2004

Chuck McGee arraigned for his role in phone-jamming.

7/10/2004

James Tobin donation to Kit Bond (MO) $500

7/13/2004

NH State Democratic Party files suit against the Republican State Committee and its former executive director over the jamming of six phone banks on Election Day 2002.

7/28/2004

Chuck McGee pleads guilty in Federal Court.

8/26/2004

James Tobin donation to Sandhills PAC (Chuck Hagel) $500

9/3/2004

James Tobin donation to Iowa Priorities PAC (Jim Nussle) $500

Early October, 2004

NH Democrats sue both McGee and Raymond, filing a motion that describes but does not name James Tobin as the unidentified co-conspirator whose identity has been concealed by the Justice Department.

10/11/2004

Josh Marshall’s TalkingPointsMemo reveals the name of James Tobin, based on information in the Democrats’ lawsuit.

10/14, 2004

The Manchester Union Leader becomes the first mainstream media outlet to name James Tobin in connection with the phone-jamming scandal.

10/15/2004

James Tobin resigns as Bush-Cheney New England campaign chair. http://www.talkingpointsmemo.com/archives/003694.php

12/1/2004

James Tobin is indicted by Federal grand jury on four counts related to the get-out-the-vote phone-jamming. The indictment describes Tobin as the go-between who put McGee and Raymond in touch with each other. Tobin pleads innocent to the charges.

12/9/2004

According to RNC financial disclosures, the Republican National Committee paid the high-powered Washington law firm Williams and Connolly $162,646 on Dec. 9, 2004, eight days after a grand jury charged that Tobin had aided former state GOP executive director Charles McGee in setting up an operation to jam voter-turnout telephone banks at Democratic and labor union offices throughout the state. http://www.democrats.org/a/2005/08/whos_dopey_geor.php?comments=1

5/18/2005

Superseding indictment of James Tobin alleges 4 counts: Conpiracy 1) against voters’ rights and 2) to make phone calls violating federal law, and Aiding and abetting 3) anonymous harassing phone calls and 4) repeated harassing phone calls. http://wid.ap.org/documents/tobinindictment.pdf

8/13/2005

Union Leader breaks story that RNC is paying Tobin’s legal bills.

August, 2005

Federal Prosecutor Todd Hinnen pulled off the phone-jamming case, replaced by a brand-new prosecutor. (Tobin’s defense continues to be handled by partner-level staff from top DC white-collar-crime group Williams and Connelly.)

12/6/2005

James Tobin’s trial begins, in front of an audience that includes a few local reporters, many well-dressed young lawyers taking notes, and one dogged blogger. (Chronological account of Tobin’s trial)

12/15/2005

James Tobin convicted on two counts (Conspiracy, and Aiding and abetting related to phone calls); acquitted on conspiracy against rights.

12/15/2005

Tobin’s lawyers get another $1,771,360.21 from the RNC

12/21/2005

Tobin’s lawyers file notice of their intent to appeal his conviction.

3/27/06

Fourth indictment in NH phone-jamming case–Sean Hanson, the Idaho telemarketer whose company made the hang-up phone calls.

04/08/2006

Karl Rove thanks GOP lawyers for “clean elections.”

04/12/2006

NH State Legislature votes unanimously to make phone-jamming a felony.

I’ve been at work on a timeline of the NH phone-jamming scandal, trying to “follow the money” that flowed to and from friends of DeLay and Abramoff, as well as the ongoing payments from the RNC to defense lawyers for convicted felon James Tobin.

Here are a few highlights, but I’ll be backpaging the ongoing timeline work:

10/28/2002

NH Republican State Committee gets $10,000 from Abramoff clients.
http://query.nictusa.com/cgi-bin/dcdev/forms/C00136457/95264/sa/ALL

11/1/2002

NH Republican State Committee gets $5,000 from Tom DeLays’s ARMPAC.

11/4/2002

McGee signs a $15,600 NH Republican State Committee check to pay for phone-jamming.

11/5/2002

Election day phone-jamming plan unravels, and James Tobin makes two dozen phone calls to the White House office of public affairs between 11/4 and 2:17 a.m. on 11/7…

6/30/2004

Prosecutor Todd Hinnen discloses the involvement in phone-jamming of Allen Raymond’s “former colleague who was then an official in a national political organization.”

6/30/2004

James Tobin donation to Tom Delay (TX) $2,000 (More on Tobin’s donations to friends of DeLay and Abramoff.) …

10/14/2004

Democrats file motion that for the first time names James Tobin as the unidentified co-conspirator and alleges that the Justice Department is conspiring with NH State Republicans to keep his name from being disclosed. http://www.talkingpointsmemo.com/docs/phone.jamming.motion.10.14.pdf

10/15/2004

James Tobin resigns as Bush-Cheney New England campaign chair. http://www.talkingpointsmemo.com/archives/003694.php

12/9/2004

Eight days after James Tobin’s indictment, the RNC starts paying lawyers to defend him. http://www.democrats.org/a/2005/08/whos_dopey_geor.php?comments=1

8/13/2005

Eight months later, Union Leader breaks story that RNC is paying Tobin’s legal bills.

12/15/2005

NH jury finds James Tobin guilty of conspiracy in the phone-jamming; his lawyers get more money from the RNC and start appealing within a week.

04/08/2006

Karl Rove thanks GOP lawyers for “clean elections.”