Tom Horne May Triumph in Court, but Don't Count on a Win on Election Day

Arizona Attorney General Tom Horne's corruption is blatant, in your face, unrepentant.

Yet, given the machinations of Horne's lawyers, battling both Horne's misdemeanor fender-bender charge with the city of Phoenix and the campaign-finance-law complaint brought by Maricopa County Attorney Bill Montgomery, I suspect the AG will escape all but the mildest of sanctions.

Hearings in both cases recently were rescheduled. Last week, Horne's attorney, Michael Kimerer, asked for the postponement of a pretrial hearing in the Horne hit-and-run case set for December 17 in Phoenix Municipal Court. Horne has pleaded not guilty in the case.

The court granted Kimerer's request, putting off the hearing 'til January 18.

"Defense counsel has been provided extensive discovery in this case, which requires additional time to evaluate completely," claims Kimerer in his motion.

He says he must "schedule interviews with several critical witnesses" and mentions that he is "hopeful that a resolution of this case can be obtained."

Kimerer adds, "To that effect, counsel has had ongoing communications with the city prosecutor regarding a settlement."

In other words, it's good to be the AG. Even if two FBI agents witness you commit a hit-and-run on a car parked near the pad of your alleged mistress, Carmen Chenal (you know, the one pulling a six-figure salary at taxpayer expense), conviction remains a long shot.

Then, there's the whole issue of election-year "coordination" between Horne and Business Leaders for Arizona, the independent-expenditure committee once run by Horne's current head of outreach, Kathleen Winn.

As I mentioned in my cover story on General Hornedog's Chenal-gate, Horne and Winn hypothetically could be on the hook for $1 million in fines each ("Arizona AG Tom Horne's Sex Scandal Scuttles Gubernatorial Bid," December 6).

But the audio recording of a recent hearing before Administrative Law Judge Tammy Eigenheer doesn't fill the listener with a sense of impending justice. The ALJ will be deciding on a Winn-Horne appeal of an order by County Attorney Montgomery to return the money Winn raised through BLA.

Administrative law hearings can be casual affairs. This one was unusually cordial, to judge from the audio.

In it, lawyers for Horne, Winn, and the county attorney discussed procedural matters with Eigenheer and put off the scheduled January 22 start of a six-day hearing on the allegations until February 25, at the earliest.

Two issues need to be resolved, according to the law hounds: what "coordination" consists of and whether the county attorney has jurisdiction over this alleged violation of Arizona law by Winn and Horne.

"The proper procedures," Kimerer wrote in his pre-hearing statement for Horne, "would have the Attorney General's Office — not the attorney general himself — appointing a neutral party to do the investigation and prosecution. That statutory procedure was not followed in this case."

Translation? Horne should get off on a technicality because, Kimerer argues, state statute says Arizona Secretary of State Ken Bennett should've sent a probable-cause letter to the AG's Office, not to the county attorney.

I know this stuff's confusing, so here's a refresher on how the investigation unfolded:

First, Horne ordered an internal probe into an assumed mole in the AG's Office, one he suspected of feeding me info on his supposed extramarital affair with Chenal.

The AG's investigator uncovered evidence of unrelated wrongdoing by Horne. She turned it over to the FBI.

The FBI investigated, in part with the help of the County Attorney's Office. The FBI then turned over its entire file to the county attorney and the U.S. Attorney's Office.

The U.S. Attorney's Office for Arizona choked, like it continually does when faced with allegations of big-time public corruption.

Per Arizona statute, the MCAO sent the investigation to Ken Bennett, and Bennett sent Montgomery a letter telling him, "This office has reasonable cause to believe that Attorney General Horne and Kathleen Winn have violated [state campaign-finance law]."

The secretary of state's letter says the AG "declared a conflict to my office on April 16, 2012," and that pursuant to Arizona law, the SOS has the authority to choose counsel other than Horne, who normally would enforce campaign-finance statutes in such an instance.

So Bennett chose Monty's office as the prosecuting entity.

Horne's lawyer is expected to file a brief this week arguing that Horne's right to due process was violated and that the county attorney unlawfully brought this action against Horne.

The MCAO will respond, and Eigenheer eventually will rule.

If Eigenheer finds that the county attorney does have jurisdiction, the hearing will proceed, though her decision could be the basis for a later appeal by Horne and Winn to county Superior Court.

Should the administrative law judge rule that the county attorney doesn't have jurisdiction, the case will be dismissed.

"I definitely think that jurisdiction is an issue that would have to be established before we could go forward," Eigenheer states, adding, "I don't see the point of wasting everyone's time if it turns out there is no jurisdiction."

I know the feeling. I'm beginning to wonder why we bother to go through with this hick-state Kabuki theater when it comes to addressing bald-faced corruption.

Might as well do what county Superior Court Judge Crane McClennen suggested in a related case in October: overturn all our state campaign-finance laws in the wake of the U.S. Supreme Court's Citizens United case.

I mean, listen to the recording of the December 6 hearing yourself on the website for the Arizona Office of Administrative Hearings.

Eigenheer seems as if she'd be content to let the MCAO and attorneys for Winn and Horne work the whole thing out between themselves.

"As far as discovery goes," she tells the lawyers, "if the parties can get together and resolve, specify what the issues are, stipulate to exhibits, stipulate to any allegations . . . any fact issues, that will cut down a lot on our time . . . and I think will be better for everyone involved."

Corruption persists when the public allows it, tolerates it, becomes complacent to it. Politicians such as Horne and their lawyers assume that all they have to do is wait us out 'til we move on to the next outrage, the next travesty. There are so many around here.

The Hornes of the world emerge from the sewer with slaps on the wrist and smiles on their faces. They know they can appeal even the slap and end up with a nudge, at worst.

Shamelessness, in their world, is a virtue.

Karma is sure to catch up to Horne in the form of an opponent willing to throw his state-financed gal pal in voters' faces — and recount the litany of misdeeds committed by the state's highest law enforcement authority.

For that, we'll have to wait about 18 months, until the GOP primary is in full swing.

Assuming, of course, that Horne is arrogant enough to run for AG again, which he probably is.

Both Democrats and Republicans are lining up, licking their lips at the thought of slicing Horne to pieces in 2014 with the contents of the FBI's investigatory file on the AG's shenanigans — which include alleged witness tampering and obstruction of justice, to name but two.

The file was made public by Monty's office in October. Every politician, consultant, and political reporter in town has a copy.

By all rights, Horne should have no more than two years of political life left. But this is Arizona, and one thing thrives in this desert along with cactus and creosote:


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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons