Sunday, May 15, 2011

Robocalls, Subpoenas, and "Litigation"

The Baltimore Sun now reports that subpoenas are going out to former Ehrlich aides and associates from the state grand jury investigating the robocalls scandal.

In an interesting twist on events, one of the subpoenas was served in the presence of The Sun’s own Laura Vozzella.

As reported by the Washington Post last week, Julius Henson’s attorney referenced the existence of a  federal grand jury in court filings. To date, however, there have been no indications as to who they’ve spoken to, or what possible violation of federal criminal law they are investigating.

I know a lot of lawyers, and I informally polled them on what they thought was going on with the federal grand jury. All see it as bad news for Henson and possibly the Ehrlich campaign, although all acknowledge the federal grand jury’s political origins.

Senator Ben Cardin, Congressman Elijah Cummings, and other state Democrats have called upon the Obama Justice Department to investigate whether any federal laws were broken. Empanelling a federal grand jury certainly fulfills that request. Time will tell whether they actually find something, or if it is merely a political exercise.

Lastly, I was interested by Team Ehrlich’s response to news about the subpoenas:

"'Because it's under litigation and because [information about the subpoenas] is not supposed to come out, we're not going to comment,' (Greg) Massoni said."

So my question is: Is this a proper use of the term “under litigation”?

To me, “under litigation” usually refers to civil court action. In other words, you’re getting divorced and the case is in litigation. Or, you’re involved in litigation over a medical malpractice suit and cannot discuss it as a result.

Even if the term is technically accurate, applying it here seems both absurdly euphemistic – like calling illegal immigrants “New Americans” - and (to borrow a term from Julius Henson) counterintuitive.

My guess is some lawyer advised the redoubtable Massoni to use "under litigation" because it sounds better than “criminal investigation.”

Massoni’s invoking the term reminded me of the first campaign debate between Governor O’Malley and former Governor Ehrlich. At one point, Ehrlich professed his campaign's desire to discuss Maryland’s future instead of “re-litigating the past.”

This time, however, they may not have a choice. 


  1. Richard - We learned from the Sun's follow-up that the subpoena came from the Maryland state prosecutor. Henson's lawyer said state and federal grand juries have been empaneled.

    It's more than wishful thinking on my part that the Ehrlich campaign is the target rather than Henson. The criminal question I see is whether or not the Ehrlich campaign paid a proxy (Julius Henson) to conceal their involvement in illegal or unsavory campaign activities and expenditures (robocalls intended to suppress minority voter participation).

    Federal and state laws prohibit campaigns from paying third parties to to conceal the true purpose and recipients of campaign expenditures. Federal law also prohibits deceptive practices intended to suppress minority voter participation.

    The robocall matter invites review of Bob Ehrlich's and then-ticket mate Michael Steele's 2006 minority targeted ploy involving fake ballots and busing in indigent men from Philadelphia to unwittingly appear as Ehrlich campaign volunteers. Nothing in Mr. Ehrlich's campaign disclosures indicates how that ploy was paid for, but disclosures from Mr. Ehrlich, Mr. Steele, and the Maryland Republican party show $417,000 in mysterious payments to Allied Berton, a defunct commodities trading firm registered to Sandy Roberts, a friend of Mr. Ehrlich and Mr. Steele who secured a lucrative hands-off concession at Baltimore-Washington International Airport under suspicious circumstances during the Ehrlich administration.

    Those same disclosures also show $600,000 in payments in the same period to a bona fide campaign consultant who specializes in African American voter contact, but that campaign consultant has denied involvement in the 2006 election day ploy.

    I hope I'm not the only person wondering if the federal and state grand juries reportedly probing the robocall matter will connect these dots.

    - Lebowitz

  2. I'm intrigued by what Vozella says about witnessing the subpoena being served-- since she says they weren't talking about Ehrlich or Hensen or robocalls, you kinda have to assume it wasn't someone from the inner circle she was sitting with. Anyone have any guesses?

  3. Massoni and Joe Sliwka - two recent subjects of Vozzella's blog - are Ehrlich campaign veterans. Perhaps she was meeting with them as relationship-building follow-up to her columns. Henry Fawell is another possibility.

  4. This whole scandal has to have been one of the stupidest ideas ever. Did anyone actually think it would just fly under the radar? Did anyone actually think it would really help?

    The whole thing is absolutely ridiculous, and those responsible deserve what's coming to them for "crimes against stupidity." Plain and simple.

  5. Agreed. This is so painfully dumb, as obtuse as most Ehrlich Worlder's were/are, this episode defies logic! Even dumber than it was to have Henson anywhere near the campaign in the first place!

  6. Walters: Desperate times called for desperate measures. It's why I reversed course on helping them on the '10 campaign (that, and the decision to call for a repeal of the penny sales tax increase, paying for it with cuts to education funding - brilliant political strategy from a R in a deeply blue state).

  7. What's amusing is that the State Democrats want a federal DOJ investigation into robocalls, but not their own electoral practices including giving entertainment, food and drink to people in return for them 'early voting'. The difference is they control the government so they will say what they did is legal. My favorite though is neither Cardin nor Cummings wanted an investigation into Jack Johnson--gosh that would just be racist. The calls were stupid, accomplished nothing, and border on harassment, but unless campaign funds were used, the fall under free speech. The pay-for-play that's rampant in Maryland is what should be the real focus and its tentacles reach deep into current state and federal officeholders in Maryland.

  8. Anon @ 6/3/11 @ 6:15

    I agree with your points. I had a friend who visited polling places on election day 2010. Twice he heard black voters reference the need to vote against Ehrlich because he would "impeach Obama."

    Clearly that was coming from somewhere. But there is no fairness here when it comes to policing the activities of the ruling establishment. The double standard persists. That isn't going to change.

    The robocall stunt was half-baked, ineffective, pointless. Doing it served no purpose, other than giving our enemies another tool with which to attack us. Hence my frustration.