Day one of an administrative hearing into alleged campaign-finance shenanigans by Arizona Attorney General Tom Horne found Phoenix attorney Buddy Rake's genteel Texas drawl dipping in and out of the Federal Election Commission's definition of what constitutes illegal "coordination" by a candidate.
That's what Horne is alleged to have done with the independent expenditure committee Business Leaders for Arizona in 2010, when his political operative and current outreach director, Kathleen Winn, set her gun sights on Felecia Rotellini, the Democratic candidate for attorney general.
Rake is part of a four-man team of lawyers representing Horne and Winn. At question is whether Horne and Winn coordinated the creation and financing of a TV ad attacking Rotellini as a pro-illegal, pro-union liberal who "sold Arizona out."
Tom Horne's Legal "Dream Team" Cannot Explain Away the AG's Blatant Corruption
BLA raised more than $500K to air this ad, which is credited with helping Horne get over the hump and beat Rotellini by 60,000 votes statewide.
For this — and for her work on Horne's 2010 primary campaign — the soon-to-be outreach director was dubbed by the AG-elect during a victory celebration "the raven of rurals," supposedly because she secured the rural Arizona vote.
(Winn later cracked during a break that this title, mentioned briefly in the hearing, was "like being [called] the best girl at the trailer park.")
At the same event, Horne called her the campaign's "secret weapon."
Rake recounted how the FBI, in the course of investigating campaign-finance allegations against Horne (as well as more serious ones involving wire fraud, obstruction of justice, and tampering with witnesses) visited the Arizona Secretary of State's Office in 2012 and learned that Arizona's law was "vague" on the subject of what constitutes prohibited coordination.
So SOS officials gave the FBI the FEC's definition of coordination, which is more detailed.
"Here's where I think things started to fall apart," Rake told Administrative Law Judge Tammy Eigenheer. "The FBI confused the distinction between communication and coordination. You don't give up any First Amendment rights by forming an independent election campaign."
Rake maintained he was being "generous" when he said the FBI was "confused about what actually consisted coordination."
But blaming the FBI for the AG's predicament is like blaming your doctor for your high blood pressure while washing down a pastrami sandwich with a quart of Old Crow.
Sure, the FBI investigated, but in this game, its authority ends there. Neither the agency nor its agents can act as prosecutor.
On two occasions, the Secretary of State's Office found reasonable cause to believe campaign-finance law had been violated.
Afterward, both the Maricopa County Attorney's Office and, later, the Yavapai County Attorney's Office concluded that Horne and Winn broke the law.
Indeed, Rake failed to mention what, according to FBI docs, Assistant Secretary of State Jim Drake told FBI agent Brian Grehoski when they met in 2012.
"Winn and Horne denying they were coordinating does not pass the laugh test," Drake explained after reviewing evidence.
See, standard practice is for an independent expenditure committee to build a Chinese wall between itself and the candidate. But Winn and Horne constantly were on the phone with each other, according to Verizon cell phone records.
This, while Winn created the attack ad with campaign consultant Brian Murray, then of Lincoln Strategy Group.
Prosecutors claim Winn was trading e-mails with Murray as she gabbed incessantly with Horne.
According to an analysis by the Maricopa County Attorney's Office, there was a spike of 87 phone calls totaling more than five hours between Winn and Horne during the time the anti-Rotellini ad was crafted.
More egregiously, Horne e-mailed polling data and advice from a pollster to an official with the Republican State Leadership Committee, the source of the lion's share of the money raised to air the ad, apparently seeking additional funds.
Horne forwarded this e-mail chain to Winn, who forwarded it to Murray with the note, "This just came into me read below."
Murray was so alarmed that he e-mailed his firm's lawyer that he had warned Winn "on numerous occasions . . . to cease contact with the candidate and any agents of the campaign."
Obviously, the advice didn't take.
Evidence of coordination between Horne and Winn is so damning that both the Maricopa and Yavapai County Attorney's Offices ordered that the pair pay back $400,000 of the money BLA raised or face triple damages of up to $1.2 million.
Even if Horne and Winn wish to discount the findings of the Maricopa office, because County Attorney Bill Montgomery is Horne's political enemy, discounting the conclusions of Yavapai County Attorney Sheila Polk, whose subordinates now are prosecuting the case, is a harder nut.
Thus, Horne and Winn's "dream team" of lawyers were having a tough time of it Monday, going so far as to challenge the phone records themselves as inaccurate.
Hey, just because the records show Horne and Winn called each other 87 times over 13 days doesn't mean that Horne and Winn themselves were on the phone, right?
That was the ridiculous argument proffered by such legendary local legal minds as Michael Kimerer and Larry Debus.
In objection after objection — most shot down by Judge Eigenheer – defense attorneys attacked the credibility of the records. No way to know whether they are accurate or not, the lawyers insisted.
But when I asked Horne, during a break, if he had paid his phone bill, he said he had.
"Doesn't that mean you thought the bill was accurate?" I asked.
Horne, looking like a corpse at his own funeral, did not reply.
The most absurd proposition of the day belonged to Debus, who suggested that the FBI had been on a "witch hunt," which explained why the FBI carried out surveillance of Horne, Winn, and their lawyers (including Debus, according to Debus).
Following the day's testimony, I asked Debus, who technically is Winn's lawyer, about his "witch hunt" charge.
"Never in the history of the FBI have they spent two years investigating a state civil case," Debus asserted.
I pointed out that the FBI's investigation also involved serious allegations of wire fraud, possible obstruction of justice, tampering with witnesses . . .
None of which led to a criminal case against the AG, he retorted.
Talk about whistling past the graveyard.
I reminded Debus of what got the FBI involved: That is, Horne assigned then-AG investigator Meg Hinchey to uncover the source of a "leak" to New Times concerning the married AG's alleged side squeeze, Carmen Chenal, whom Horne had put on the public payroll at $108,000 per year.
Debus called Hinchey "an incompetent investigator," which is funny considering that Horne picked her to do his own internal witch hunt back in 2011.
Actually, Hinchey did the right thing when she ran across evidence of possible wrongdoing by Horne and Winn — she turned over the kit-and-caboodle to the FBI.
When the FBI interviewed Hinchey's ex-boss, former Judge Jim Keppel, onetime head of the AG's criminal division, Keppel told agents that Horne had tried to hide Hinchey's investigation from public view.
"He said, 'What I want to do is . . . get [Hinchey's] notebook and have everything on the investigation taken off her computer,'" Keppel recalls in the transcript of his FBI interview.
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That's Horne, Arizona's highest law enforcement official, allegedly discussing the violation of public-records law and Horne's desire to tamper with evidence.
"I don't know anything about that," Debus said, when I asked about it. "I wasn't involved in that."
Sure, but Debus would have the court and the public believe that Horne and Winn's predicament was concocted by the FBI.
Next Debus will tell us that witches really exist after all.