Arizona Attorney General Tom Horne looked so peaceful during his testimony Wednesday afternoon that if someone told me he'd done a bong hit during lunch, I'd have to consider the possibility.
It was a marked change from the rest of the hearing into his, um, alleged campaign finance shenanigans, which began on Monday and concluded earlier than expected at five o'clock Wednesday, making every reporter in the room happier than Kiwi siren Lorde at this year's Grammy Awards.
When not under oath in Administrative Law Judge Tammy Eigenheer's courtroom, Horne's demeanor was that of a man recovering from the removal of a yard of innards.
But when it came time to testify, it was like someone flipped a switch, and to each question from his attorney Michael Kimerer, Horne effortlessly exhaled a denial.
No, he never coordinated with his now-outreach director Kathleen Winn on the independent expenditure committee she was running during the 2010 general election, Business Leaders for Arizona.
See also: -Horne's lawyers cannot explain away AG's corruption -Tom Horne and Kathleen Winn Broke the Law, Must Pay Back $397K or Face Triple Fine -Arizona AG Tom Horne's Sex Scandal Scuttles Gubernatorial Bid
What about the deluge of phone calls between the two in October 2010, when Winn and Brian Murray, then of Lincoln Strategy Group, were collaborating on a TV ad attacking Horne's Democratic foe Felecia Rotellini?
Horne said he needed Winn's help with a real estate transaction, as he was selling one piece of property on 7th Avenue and McDowell Road for $1.35 million and buying another pricey lot at the same time.
This, though he already had a broker, Greg Tatham, husband to Horne's onetime public information officer Amy Rezzonico. Also, there's no paperwork to demonstrate that Winn, a mortgage loan officer at the time, had anything to do with the deal.
Horne admitted that "Kathleen had no formal role" in the transaction, and yet, during calls lasting eight, four and 11 minutes on October 20, 2010, when Winn was trading e-mails with Murray, finalizing the ad in question, Horne said he and Winn were talking about wrapping up the property swap.
Too bad there are no e-mails from back then documenting Winn's involvement. If there were, you can bet the defense would have submitted them as evidence.
There are e-mails to and from Horne, Tatham and others involved in the deal, but there are none to and from Winn regarding that transaction, she is not cc'd on the e-mails, and she is never mentioned in any of them.
Kimerer directly asked Horne if he and Winn ever discussed BLA's attack ad.
"I absolutely did not give any input in the ad," Horne declared. "We never talked about it...I'm absolutely certain. We knew we could not and we did not."
Horne said he didn't even know Winn was producing an ad.
Try as I might to suspend disbelief, I don't understand why Horne -- who knows election law, and by his own admission had advised Winn on "the rules" before she supposedly "left" his campaign to run BLA -- just had to speak to Winn about this deal, over and over again.
I mean, Horne is a rich guy who wrote an entire book on construction law. He has a bunch of wealthy pals who double as campaign donors, such as former governor Fife Symington and Scottsdale attorney Mark Goldman, among others.
Also, in 2010 he happened to be the Superintendent of Public Schools, and you're telling me that he doesn't know anyone else to call for additional real estate advice other than the woman running an IE in support of him, a woman he's supposed to maintain a modicum of distance from as she's operating the IE?
Like we say down South, that dog don't hunt.
Then there's the closest thing to a smoking gun in this case: Horne's October 27, 2010 e-mail to Winn, wherein he forwarded an e-mail string to her, one that included polling data and strategic advice on how to beat Rotellini.
Horne had already sent the information to Casey Phillips, an official at the Republican State Leadership Committee, which was funding Winn's ad to the tune of $350,000, about $100K less than expected.
"I forwarded this to casey," reads Horne's message to Winn. "Maybe with this we can. Try again for the hundred k [sic]."
Winn, in turn, forwarded it all to Murray, who was so alarmed by receiving it that he forwarded it to his firm's counsel, explaining that he had warned Winn "on several occasions" to cease contact with Horne and anyone else involved in Horne's campaign.
Murray's warnings were ignored.
Faced with this evidence at the hearing, Horne did pretty much the only thing he could do. He admitted he sent the e-mail to Winn with the intent of firing her up to ask the RSLC for more dough.
"In my mind there was nothing improper about talking to the independent campaign about fundraising," Horne stated. "I couldn't talk about the expenditure, but I could talk about fundraising. So I sent her the poll in the hope, as the opposing attorneys say...she could use the poll to get the $100,000 that I'd been told she'd been short."
Later, Deputy Yavapai County Attorney Jack Fields asked him how he happened to know Winn was shy $100K at the time.
"I had been told that," he replied. "I didn't know how reliable it was. I was getting a lot of calls, during a campaign you get a lot of calls from people saying...`I hear there's going to be an independent campaign in your favor, don't worry.' You know? So, you get calls like that."
He got a lot of calls all right. From October 15, 2010 to October 28, 2010, more than five hours of calls took place between Horne and Winn's cell phones.
(By Wednesday, Horne's legal "dream team" had dropped the ludicrous assertion that someone else, other than Horne and Winn, might have used their cell phones to make these calls. Dumb stuff, especially since Horne admitted to me he paid his phone bill from that time, and then under oath, did not dispute the calls, just the content.)
Fields didn't press this point. But he deftly explored Horne's Clinton-esque interpretation of campaign finance laws.
Horne said President Obama and Mitt Romney directed people to contribute to IEs in 2012, so what he did in 2010 was OK.
Prosecutor Fields noted that the October 27 e-mail also included information about strategy, such as depicting Rotellini as opposed to Senate Bill 1070, and linking her to unions. Fields indicated this would violate a prong of the federal election law guidelines, used in part by Arizona officials.
Sure, that strategic advice got forwarded to Winn, too, Horne explained, but he ignored it, so that doesn't count.
"Whatever it said there, it made no sense to me, and I paid no attention it," Horne stated. "I had my ads running. This was directed to me, not to an independent campaign....It was the last two weeks of the election. My ads had a strategy from a nationally known, sophisticated consultant...That part of his e-mail was utterly meaningless to me."
Horne slices the salami so thin on this one you can see through it. At one point in the testimony, he complained that, with e-mails, you have to forward everything, you can't pick and choose.
Maybe not if you're in a hurry. Horne was desperate to beat Rotellini at all costs. This guy would have sold his alleged mistress Carmen Chenal to Al-Qaeda, if it would've helped. That's assuming they'd have taken her.
And he and Winn say they never used this info, as the BLA ad was done on October 21.
Thing is, this e-mail is far from the only evidence of coordination between Win and Horne. There's the mountain of calls between the two, and there's Winn's use of the words "we" and mention of her having "many masters" in her e-mails to Murray, as she's confabbing with Horne.
In her testimony, Winn said the plural pronouns involved other people involved in the IE, even though in a sworn affidavit, she said she ran the IE and created the ad with no help from anyone, save Brian Murray.
Finally, there is the letter of state law itself, which Horne is alleged to have abridged.
Take a look below at the definition of "independent expenditure" in Arizona Revised Statutes 16-901. The italics are mine.
14. "Independent expenditure" means an expenditure by a person or political committee, other than a candidate's campaign committee, that expressly advocates the election or defeat of a clearly identified candidate, that is made without cooperation or consultation with any candidate or committee or agent of the candidate and that is not made in concert with or at the request or suggestion of a candidate, or any committee or agent of the candidate. Independent expenditure includes an expenditure that is subject to the requirements of section 16-917, which requires a copy of campaign literature or advertisement to be sent to a candidate named or otherwise referred to in the literature or advertisement.
An expenditure is not an independent expenditure if any of the following applies:
(a) Any officer, member, employee or agent of the political committee making the expenditure is also an officer, member, employee or agent of the committee of the candidate whose election or whose opponent's defeat is being advocated by the expenditure or an agent of the candidate whose election or whose opponent's defeat is being advocated by the expenditure.
(b) There is any arrangement, coordination or direction with respect to the expenditure between the candidate or the candidate's agent and the person making the expenditure, including any officer, director, employee or agent of that person. For the purposes of this subdivision, serving on a host committee for a fund-raising event does not presumptively demonstrate any arrangement, coordination or direction.
(c) In the same election the person making the expenditure, including any officer, director, employee or agent of that person, is or has been:
(i) Authorized to raise or expend monies on behalf of the candidate or the candidate's authorized committees.
(ii) Receiving any form of compensation or reimbursement from the candidate, the candidate's committees or the candidate's agent.
(d) The expenditure is based on information about the candidate's plans, projects or needs, or those of his campaign committee, provided to the expending person by the candidate or by the candidate's agents or any officer, member or employee of the candidate's campaign committee with a view toward having the expenditure made.
Horne can quibble and split hairs all he wants, but if Horne was not coordinating, then coordination between a candidate and an IE practically is impossible, and the law should be junked as unenforceable.
Which may not be a bad idea, but while we still have some laws in this regard, politicians should give lip service to obeying them. Particularly, aspiring and current Attorneys General.
Kathleen Winn testified prior to Horne, and for most of her time under oath, she acquitted herself with poise. But under cross examination by Fields, she stumbled in explaining calls between herself and Horne, and the e-mail in question.
She, like Horne, forwarded the e-mail chain on without paying attention to it, she claimed. This time to Murray. Which makes absolutely no sense, even though Winn said the ad "was done."
I like Winn. She has a sense of humor, and moxie. But I believe she was being a good soldier in 2010, and is being one now. And perhaps you could say that's admirable in a way, if the general she was serving was someone other than Horne.
There are other issues. Winn's attorney Larry Debus has taken exception, and that's putting it mildly, to the testimony of FBI agent Brian Grehoski, even going so far as to accuse him of perjury.
I'll address this further in another post, but this sideshow seems concocted to help Horne and Winn skate. (Debus did not seem disturbed by holes in Winn's affidavit, which was made under oath.)
Indeed, Debus, when dealing with another issue regarding Grehoski, who was not allowed by the FBI to testify about every aspect of the overall Horne investigation, admitted that he wanted to get the defense's inability to cross-examine as it pleased before the court of appeals.
Indeed, much of what Debus and Horne and Winn's other lawyers were doing was laying the grounds for an anticipated appeal.
Both sides will submit written closing arguments March 13, and rebuttals on the 17th. Eigenheer will then render a judgement, which will go to Yavapai County Attorney Sheila Polk, who will make the final decision on whether to accept or reject it.
Polk has ordered that Horne and Winn pay back $400,000 to BLA contributors, and the hearing this week happened because Horne and Winn are challenging Polk's order.
After Eigenheer sends her recommendation to Polk and Polk makes a final call, the matter could end up in superior court on appeal.
If I had to wager right now, I would bet that Eigenheer finds the defendants in violation, being that the standard of proof is the preponderance of the evidence.
Eigenheer's no dummy. She's the ALJ who wrote an opinion rejecting Maricopa County Bill Montgomery's order on this same subject because Monty had violated the process laid out in Arizona law. The superior court upheld Eigenheer's ruling there.
She was paying close attention to all of the testimony this week, taking copious notes.
How she could not find that Horne is guilty as sin is beyond me.
If Horne loses, Horne, Winn, BLA or a combination of the three will face a possible fine of $1.2 million.
Can you imagine? Heck, Horne may have to sell another piece of property.