Attorneys for the defense and prosecution submitted their closing arguments in the campaign finance case against Tom Horne in the hopes of persuading the administrative law judge who must decide whether the attorney general and a top staffer illegally coordinated during the 2010 election.
The Yavapai County Attorney’s Office argued, as it did during a three-day hearing in February, that Horne and Kathleen Winn’s frequent phone communications and a key email exchange shortly before the 2010 election show that they coordinated the activities of Winn’s independent expenditure committee, Business Leaders for Arizona.
Prosecutors also fought back against an allegation that FBI Agent Brian Grehoski, their key witness, perjured himself on the witness stand in the Office of Administrative Hearings. Defense attorneys have asked Administrative Law Judge Tammy Eigenheer to throw out all of Grehoski’s testimony due to the alleged perjury.
AG Tom Horne’s closing arguments (full text)
Kathleen Winn’s/Business Leaders for Arizona closing arguments (full text)
Yavapai County Attorney’s Office closing arguments (full text)
Defense attorney’s request to strike testimony of key witness FBI Agent Brian Grehoski (full text)
Yavapai County Attorney’s Office response to request to strike testimony of key witness FBI Agent Brian Grehoski (full text)
Defense attorneys for Horne and Winn argued that prosecutors not only failed to show that Horne and Winn communicated about the ads that BLA started running in October 2010, but that such communications would have not have been illegal, even if they had.
Yavapai County prosecutors relied heavily on a series of Oct. 20, 2010, phone calls between Horne and Winn, which coincided with an email conversation between Winn and Brian Murray, a political consultant who was working with BLA.
The other pillar of the prosecution’s case was an Oct. 27 email that Horne forwarded to Winn, which included polling information about the attorney general’s race and several suggestions about how to respond to Democratic attack ads. Horne included a note to Winn suggesting she use the information to raise an additional $100,000.
“The evidence presented clearly shows two separate ‘coordination events’ between Horne and Winn,” Deputy County Attorney Benjamin Kreutzberg wrote.
Defense attorneys said the timing of the phone calls was coincidental, and that Horne and Winn were discussing a real estate transaction on which Winn was advising him.
Prosecutors keyed in on comments that Winn made in her emails to Murray, in which she suggested changes to the wording of the ad. In those emails, Winn said “we” were unhappy about how many times the ad mentioned Democratic nominee Felecia Rotellini, that she was answering to “several masters” and that two “strong personalities” were debating about the ad.
Winn testified that “we” referred to BLA chairman George Wilkinson, with whom she met earlier in the day. The “several masters” included Wilkinson and Greg Harris, a lobbyist for two companies that contributed about $30,000 to the IE, she said. And the “strong personalities” were colleagues with whom she was discussing the ad.
Kreutzberg argued that, based on the timing of Winn’s communications with Wilkinson and Harris that day, she could not have spoken with them during her email exchange with Murray. Therefore, the prosecutor wrote, the only person she have been conferring with at the time was Horne, with whom she had several phone conversations, some of which were in between emails to and from Murray.
Kreutzberg noted that Winn’s last phone conversation with Harris that day was at 9:47 a.m., hours before Murray emailed her an audio clip of the proposed television ad. And her face-to-face meeting with Wilkinson was shortly before 2 p.m., the prosecutor wrote, meaning she could not have spoken with him during her email exchange with Murray, in which she said she was trying to sort out disagreements with others over the ad’s wording.
“Between her promise to ‘have it worked out’ at 2:37 p.m. and her resolution at 2:50 p.m., Winn did not speak to Wilkinson or Harris,” Kreutzberg wrote. “She did speak to Horne, proving by a preponderance of evidence that he contributed to the decision.”
Defense attorneys said Yavapai County has in no way demonstrated that Horne and Winn spoke about anything except for Horne’s pending sale of a strip mall in central Phoenix.
And La Sota said the prosecution presented no evidence that countered Winn’s explanation of who she was referring to when referenced the other people she consulted with on the ad, let alone evidence that she was referring to Horne.
“None of the countless witnesses the FBI interviewed claimed direct knowledge of this,” La Sota wrote. “YCAO’s theory requires this court to believe that three separate witnesses, Winn, Horne and Wilkinson, are lying under oath.”
Kimerer pointed out that the original email from Murray, which came while Winn was on the phone with Horne, was an audio file. Winn could not have opened the file and listened to it while on the phone, meaning she must have done so after ending her conversation with Horne.
“There was no second call to Horne after she reviewed the email before responding to Murray,” Kimerer wrote.
He also noted that the only changes made to the ad as a result of Winn’s Oct. 20 emails with Murray were minor, and it doesn’t make sense to assume that Winn would have consulted with Horne on such minor changes. The final version mentioned Rotellini’s name only three times instead of the original four, and it made minor wording changes, mostly to shorten the ad so it would fit into a 30-second spot.
Prosecutors presented the Oct. 27 email as a damning piece of evidence that showed Horne wilfully giving Winn suggestions for BLA activities. Kreutzberg said the email, which was originally sent from a Republican political operative to Horne, contained “strategic information” and suggestions as to how Horne should defend himself from Democratic attacks, and stressed that Horne openly suggested that Winn use it to raise additional funds for BLA.
While Horne testified that the strategic advice was “meaningless” and that nobody paid heed to it, Kreutzberg noted that Horne still forwarded it to the Republican State Leadership Committee, a national GOP group that funded most of BLA’s activities. And once Horne sent it to Winn, she forwarded it to Murray, Kreutzberg said.
“Horne’s act of passing strategic suggestions to Winn on October 27 resulted in coordination, and further bolsters the circumstantial evidence proving that they coordinated before that date,” the prosecutor said.
But defense attorneys said state and especially federal law do not prohibit coordination regarding fundraising. And the strategic information could not constitute coordination unless Winn and Murray acted on it, which they didn’t, the attorneys wrote.
Kimerer and La Sota repeatedly referred to federal election law – state-level election officials often use federal law to guide their decisions in coordination cases – which states that coordination cannot happen unless a candidate’s input has a “material” influence on an IE ad. The information Horne forwarded to Winn did not have a material effect on the ad, which had already began airing and was not altered afterward, the attorneys wrote.
“’Minor’ is the opposite of material. Even if the ‘we’, the ‘several masters’ and the ‘strong personalities’ were Tom Horne (it was not), it is legally irrelevant without a material effect,” La Sota wrote. “YCAO fails to show Horne had input, and doubly fails to show this input was material.”
In a separate filing, Kreutzberg disputed the defense’s allegation that Grehoski perjured himself. Defense attorneys alleged that Grehoski falsely testified about a fabricated phone conversation that he and another agent had with real estate agent Greg Tatham. Grehoski testified that Tatham told him and Agent Mervil Mason that he was unaware of Winn have any involvement in Horne’s real estate transaction.
Tatham testified that the conversation never occurred, and that the agents never asked him about Winn. Mason’s phone records do not list the alleged conversation.
Kreutzberg said the call could have been made from an FBI land line to Tatham’s land line, which would not show up on either party’s cell phone records. Grehoski could have asked Tatham about Winn in a voice mail, and inferred his answer about her involvement from a later conversation, he said. Or Grehoski simply could have misremembered the precise sequence of events, which had happened nearly two years earlier.
“None of those explanations constitute perjury,” Kreutzberg wrote.
Even if it could be shown that part of Grehoski’s testimony was untrue, Kreutzberg said there’s no reason for Eigenheer to strike all of it.
The defense and prosecution’s final rebuttals to each other’s closing arguments are due March 21. Eigenheer has 20 after that to rule in the case.