Ask any prosecutor what their favorite kinds of cases are, and you’d likely get a similar answer: public corruption.
Arizona Attorney General Mark Brnovich is no different, according to his spokesman, Ryan Anderson.
“Nothing would make him happier than to be able to prosecute an elected official who has broken the law, regardless of their political party,” Anderson said.
A record of investigations by the Arizona Attorney General’s Office under Brnovich’s tenure reveals those cases are far from simple. While Brnovich has had some success seeking charges or court ru- lings against elected officials at the highest levels of state government, recent investigations show how nuanced filing charges can be, and how decisions about when to prosecute, or not, can hinge on quirks in statute.
Brnovich has investigated fellow Republicans, such as former Secretary of State Michele Reagan, former House Speaker David Gowan and most recently, former state Rep. Todd Clodfelter, who the Secretary of State’s Office alleged was violating the law by lobbying shortly after he left elected office. None was charged. The same can be said for some Democrats, such as former state Sen. Catherine Miranda, who was referred to the Attorney General’s Office for investigation by the Senate Ethics Committee.
Each lawmaker’s alleged misdeeds – and in some cases, verifiable wrongdoing – are vetted by career prosecutors under Brnovich, who isn’t interested in engaging in “political witch hunts,” Anderson said.
“There are cases in which I think we would’ve loved to charge people because we think there are individuals who are maybe exploiting the system or taking advantage of the system,” he said. “But the burden of proof for criminal prosecution is so high that you don’t just indict people for the sake of headlines or for the sake of hoping that maybe, crossing your fingers, it’ll stick with a jury.”
Balls and Strikes
Former top prosecutors at the state and federal level agree that decisions about when to prosecute public corruption cases, and when not to, reflect how difficult those cases are to bring before a jury.
“I think they are generally calling balls and strikes based upon the facts,” Paul Charlton, a former U.S. Attorney for Arizona, said of the state Attorney General’s Office. Cases are easiest to prosecute “where the evidence is very clear as it relates to a quid pro quo,” he added.
Without clear cut evidence – for example, videotapes in the 1991 AzScam case of Republican and Democratic lawmakers accepting payments and bribes from undercover investigators – even high profile cases of corruption can be challenging to prove before a jury.
“History is replete with high profile corruption cases that end up badly for the government because juries want to see what they read about in books, in novels or what they see on television: They want to see the cash handed to the politician, and they want to see the politician agreeing to do something inappropriate,” Charlton said. “Juries want and expect clear evidence that ensures a quid pro quo, and that kind of evidence is difficult to find.”
Absent that kind of evidence, it’s tough for prosecutors to convince a jury of malicious or criminal intent. Such was the case with Gowan, who Brnovich investigated in the wake of detailed reports in the Arizona Capitol Times in 2016 of the former speaker’s misuses of state resources.
Brnovich found a “systemic breakdown” of checks and balances at the House, where Gowan had wrongfully been reimbursed for trips he’d taken in state vehicles, and for claiming per diem on days he’d claimed to work but didn’t.
But Brnovich found no criminal wrongdoing – or at least, not a strong likelihood that charges against Gowan would lead to a conviction in court.
“Just because something may be unethical or even troublesome, it doesn’t mean that it rises to a level of criminal conduct, and I think that’s what happened in this case,” Brnovich said in 2017.
Put another way, “we could never prove that Gowan had intent associated with what he did,” Anderson said.
Former attorney general Terry Goddard, a Democrat, said it’s difficult to convince a jury of criminal behavior without being able to prove criminal thought.
“When its negligence or incompetence, that’s a whole lot harder to show a guilty mind, and a guilty mind is an important part of a successful prosecution,” Goddard said.
Other investigations by Brnovich have found some level of wrongdoing by elected officials, but quirks in the law have left the Attorney General’s Office with no path for holding those officials accountable in court.
In the case of Reagan, the then-secretary of state violated the law when she failed to mail information pamphlets to some 200,000 voters by a set deadline before the 2016 election.
An outside investigation appointed by Brnovich later found no criminal violations by Reagan or her staff, despite the clear violation of statute dictating her duties as secretary of state. That’s because the investigators found that Reagan and company made an honest mistake, and did not “knowingly fail to perform” their election-related duties.
“Incompetence, ineptness, are not necessarily criminal offenses that mean you need to be thrown in jail,” Anderson said. “They’re not defenses of the law, but a lot of what we’re looking at here in the cases we’re talking about – not all of them, but a lot of them – are failures of elected officials to live up to their responsibilities as public officials.”
Anderson said there was another wrinkle to the investigation: There’s no penalty in statute for violating the particular law that Reagan, as secretary of state, broke.
At the time, Brnovich criticized the Legislature for writing the law in such a way that there’s no penalty for missteps such as the one Reagan’s office made.
Clodfelter, the most recent example of an elected official investigated by the Attorney General’s Office, appeared to be violating a law preventing former legislators from lobbying for up to one year after they leave office. Evidence sent to the state attorneys by Elections Director Bo Dul showed Clodfelter and his wife, the founders of the lobbying firm Tag Team Strategies, had been active at the Capitol to sway legislation on behalf of their client, a cosmetology association.
Top prosecutors under Brnovich didn’t disagree, but found that while Clodfelter was lobbying, there was no evidence that he’d been directly paid for that work.
Though Clodfelter claimed income from Tag Team Strategies in 2017 and 2018 on financial disclosure statements, a series of 2019 bank statements show that the firm paid Clodfelter’s wife, not the former lawmaker.
“While we believe Mr. Clodfelter was engaged in some form of lobbying, the statute explicitly prohibits lobbying for compensation. After a thorough review of Tag Team’s bank records and answers provided by Mr. Clodfelter’s legal representative, there was no evidence that Mr. Clodfelter was compensated for his work,” Katie Connor, a spokeswoman for Brnovich said.
Anderson said Brnovich has to interpret the law the way it was written. If anyone isn’t satisfied with the results, the Legislature can always change the law.
“We have a toolbox, and we can only work with the tools that we’re given,” Anderson said.
Brnovich has had some successes, most notably a 2015 case against Susan Bitter Smith, the former chairwoman of the Arizona Corporation Commission.
Brnovich petitioned the state’s Supreme Court to have the then chairwoman ruled ineligible to hold office, citing her ties to Cox Communications and the Southwest Cable Communications Association – companies the Corporation Commission is responsible for regulating – as evidence that Bitter Smith was disqualified from office.
Bitter Smith resigned roughly two weeks after the Supreme Court granted Brnovich’s motion to consider the case.
Brnovich later closed the case. Mia Garcia, the AG’s spokeswoman at the time, said the office was primarily investigating a criminal breach of the state’s conflict of interest statute, as attorneys in the attorney general’s criminal division determined there was “insufficient evidence” to bring a criminal case against Bitter Smith.
Anderson pointed to cases at the local level, an area Goddard highlighted as rife for cases involving misuse of government property for personal gain.
For example, a Brnovich lawsuit prompted a superior court judge to rule that a Window Rock school board member must resign for failing to meet the qualifications to serve in elected office, and the AG’s Office pursued felony theft charges against a former mayor in Florence.
Those cases had the type of evidence that Charlton said are essential to convincing juries of public corruption – a “smoking gun,” Anderson said.
“Those are different because in the cases where we’ve done that, we have found real crimes where people have embezzled, stolen money,” Anderson said.
“If the evidence is there, and there is an actual likelihood of conviction – and I don’t mean 100 percent – if there is a real likelihood of conviction, we’re going to pursue the case,” he later added.
Court of Public Opinion
Even when Brnovich decides not to prosecute an elected official, the attorney general has taken another tactic to hold those officials accountable: Public shaming.
In the case of Reagan, Brnovich didn’t mince words about the secretary of state’s handling of the pamphlet-mailing incident at a May 2016 press conference, telling reporters he was “pissed off” at the “complete fiasco” created by Reagan and her staff.
“I don’t know what the right word to express it. But it pisses me off, as an Arizonan, as the attorney general,” he said.
As for Gowan, Brnovich’s details of the investigation noted that the former spea- ker’s receipt of reimbursements for travel and per-diem payments were “troublesome,” though not criminal.
“The investigation has shown that there was a substantial disregard for determining whether state funds for per diem, mileage, and official travel were paid pursuant to proper authority, acts which could be potential felony violations (of state statute),” Brnovich wrote in a 2017 memo.
Goddard said Brnovich’s use of “public chastisement” is a common tool among state attorneys general, particularly when it came to the attorney general’s comments about Reagan.
“To have him say that about a statewide elected official is pretty powerful stuff,” Goddard said, and it was arguably detrimental to Reagan’s election chances, despite her avoiding prosecution.
Anderson said it’s a useful tool for Brnovich in those particular cases where public officials fail to live out to their elected responsibilities in not necessarily criminal ways. And it matches the attorney general’s personality, he added.
“The public, I think, is frustrated with a lot of the representation that they receive today from their elected officials” from the highest levels of state government to local leaders, Anderson said. “I think that Brnovich shares a lot of that frustration.”
Brnovich is cognizant of using the “bully pulpit” of his office as an elected official, not just the state’s top attorney, to call it as he sees it, Anderson said.
“There’s the trial in the courtroom and there’s the trial of public opinion.”