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Hunter defense involving prosecutors at Clinton fundraiser likely a non-starter, experts say

Rep. Duncan Hunter, right, and his attorney Greg Vega, left, arrive at the San Diego federal courthouse for Hunter’s arraignment.
(John Gibbins/U-T)
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With midterm elections approaching and Republican Rep. Duncan Hunter staring down fraudulent campaign spending charges, he and his attorney are attacking the criminal prosecution as being politically motivated.

Their evidence: two federal prosecutors involved in some way or another in the case attended a Democratic fundraiser for then-presidential candidate Hillary Clinton in 2015.

It’s a defense that Hunter’s attorney raised before the Aug. 21 indictment, and will likely continue to play a role in the team’s legal strategy as the case moves forward.

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But in the grand scheme of the case, is it a defense that will have any real impact?

Legal experts say the argument brings up an interesting side issue — and at worst raises questions of an appearance of a conflict of interest — but is unlikely to derail the case.

Officially invited

The Aug. 7, 2015, breakfast fundraiser, starting at $1,000 per person, was hosted at the La Jolla home of Qualcomm co-founder Irwin Jacobs and his wife, Joan. Three prosecutors — including Alana Robinson, who was a supervisor in the San Diego office at the time, and Emily Allen — were present.

The U.S. Attorney’s Office said that they attended in an official capacity at the request of the U.S. Secret Service. Both prosecutors are registered Democrats, records show, however they did not make contributions at the fundraiser.

The Secret Service explained further that it regularly makes such requests for attendance. “The in-person representation provides for, and facilitates, real-time direct communications in the event of a protective security related incident where immediate prosecutorial guidance could be necessary,” the agency said in a statement.

Both women posed for photos with Clinton, a bonus that other attendees had to buy a $2,700 entrance ticket for. The Secret Service said such photo opportunities are often offered to local law enforcement personnel, including prosecutors, in limited numbers.

It wasn’t until about six months later, in April 2016, that it was first reported that the Federal Election Commission was looking at suspicious spending in Hunter’s campaign coffers. That included about $1,300 in video games and $1,650 in private school tuition. Hunter said the expenses were mistakes and vowed to pay them back.

By this time, Hunter was helping campaign on behalf of President Donald Trump, after being the first sitting congressman to endorse him.

After Trump won the election in November 2016, San Diego’s Democratic U.S. Attorney, Laura Duffy, stepped down and Robinson, the second in charge at the office, took over as acting U.S. attorney. Robinson was in that role when she authorized the first batch of search warrants in the FBI’s investigation of Hunter in February 2017.

Robinson was later replaced by cartel prosecutor Adam Braverman, a pick of the Trump administration, and does not appear to have had any other involvement in the Hunter case.

However, Allen is one of three prosecutors now on the case. The other two are Mark Conover and Phillip Halpern, the veteran litigator who is spearheading the case.

A review of Halpern’s biggest cases shows offenders on both sides of the political aisle. Halpern helped prosecute Jose Susumo Azano Matsura, a Mexican tycoon who contributed foreign dollars to San Diego political campaigns of both parties; former Democrat Mayor Maureen O’Connor for money laundering; and Republican Rep. Randy “Duke” Cunningham for bribery.

Hunter’s defense attorney, Greg Vega — who happens to be a former U.S. attorney in San Diego appointed by President Bill Clinton — argued in a letter to the Department of Justice that Robinson and Allen should be recused: “Even if there are benign explanations, it is only logical to conclude that they attended primarily because they wanted to be at an intimate event with candidate Clinton, show their support for her candidacy and have an opportunity to meet her,” stated Vega.

“Their subsequent conduct calls into question the impartiality of the investigation of Congressman Hunter and at a minimum creates the appearance of a conflict of interest,” he said.

The DOJ has rejected Vega’s claims. But the argument continues to live on.

“If Alana hadn’t become acting U.S. attorney for some period of time during which the Hunter investigation was in progress, it would be a non-issue,” said Pete Nunez, a former Republican-appointed U.S. attorney in San Diego who works in immigration policy. “That gives the defense the arrow they’re trying to shoot.

“We’re taught as lawyers and prosecutors you have to avoid the appearance of impropriety, avoid the appearance of a conflict of interest,” Nunez added. “The government handed the defense an issue that is unnecessary. But they did it and now they’re stuck with it.”

Common defense

But will such an argument go anywhere?

Legal experts say probably not. That doesn’t mean Hunter’s legal team won’t try.

Hunter and his wife, Margaret, are accused in a 60-count indictment of spending $250,000 in campaign funds on personal items. Many of the expenditures occurred after the couple had overdrawn their personal bank account, authorities said. The couple has pleaded not guilty.

Jessica Levinson, a professor at Loyola Law School and former president of the Los Angeles Ethics Commission, pointed to a oft-repeated legal quote attributed to writer Carl Sandburg: “When the facts are against you, argue the law. When the law is against you argue the facts. If the law and the facts are against you, pound the table and yell like hell.”

“I think when it comes to political corruption cases,” Levinson said, “when you don’t have either, argue political motivation. This becomes the thing we say when it comes to political corruption indictments now.”

Under the Hatch Act, a set of guidelines that controls how federal employees can engage in politics, prosecutors are prohibited from publicly endorsing candidates and organizing political events. But as private citizens, they can vote, contribute to campaigns and attend fundraisers.

“Unless there’s a viable claim of prosecutorial misconduct, that they really engaged in partisan political activity on the job, then I don’t think a good argument can be made,” said Richard Painter, who served as associate legal counsel in the George W. Bush White House.

He said prosecutors have political leanings the same as anyone else.

“Some voted for Trump, some voted for Clinton,” said Painter, a professor at the University of Minnesota Law School. “You can’t say that someone who voted for Trump or Clinton is somewhat prejudiced. A congressman can only be prosecuted by a pro-Trump prosecutor?”

While the Clinton fundraiser might be argued in a pre-trial motion, it is less likely to appear in front of a jury should the case make it to trial, legal experts say.

“They will use any means available to try to convince a jury this was all political,” said Nunez. “It’s not clear to me how far a judge will let them go in that regard.”

One issue the defense could raise more easily, without having to call government witnesses, Nunez said, is the timing of the indictment, three months before midterm elections.

Transparency needed

If the fundraiser is the subject of a pre-trial motion, it would force the government to disclose more details about its practice of inviting prosecutors to Secret Service protection details.

Besides brief statements, the Secret Service and U.S. Attorney’s Office have declined to provide further information, including examples of other such events prosecutors have attended and whether a written policy exists.

Legal experts say the theory behind wanting in-person advice from a prosecutor seems legitimate — not only for a potential act of violence or gate-crasher, but for the numerous First Amendment issues that can arise.

Painter said he remembers litigation surrounding protesters during the Bush years, usually involving appearances by Vice President Dick Cheney.

“They thought they could get away with more with Cheney,” Painter said. “There’d be an altercation and someone would sue the Secret Service. … So I could see the need for having somebody there to give some advice.”

During one campaign season, confetti “bombs” were a popular choice among protesters.

But Painter and other experts said it would help future disputes if there were clear guidelines and procedures in place, and they were made public. It would also help to have prosecutors randomly assigned — and perhaps have members of the public corruption unit sit out, experts said.

kristina.davis@sduniontribune.com

Twitter: @kristinadavis

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