The First Circuit U.S. Court of Appeals has set the stage for the first test of courage for a U.S. Attorney since the firings of eight federal prosecutors.
The appellate court, located in Boston, ruled that James Tobin's conviction for phone-jamming in the 2002 New Hampshire general election be set aside and remanded the case back to U.S. District Court where federal prosecutors will now have to consider a retrial of Tobin.
What makes this a test case for courage is Tobin's high-level status in President Bush's re-election campaign. Until Tobin was forced to resign in October 2004, after being linked to the 2002 phone-jamming operation, he was the New England Campaign Manager for George Bush. The Republican National Committee has thus far spent over $2.5 million dollars defending Tobin with a bevy of high-priced Washington D.C. lawyers at the firm Williams and Connolly. Tobin's local defense lawyer was Thomas Rath, a member of the New Hampshire delegation to the Republican National Committee.
Tobin, convicted December 15, 2005, had asked to be set free of the charges over harassing phone calls but the appellate court instead returned the case to the trial court for disposition. The appellate judges agreed that a jury instruction was overly broad and dismissed the conviction on that account. However, the court found much wrong with Tobin's conduct and declared a jury could still convict him.
In 2002, Tobin was the New England director of the Republican National Committee and on a trip to New Hampshire was approached by the state GOP executive director Charles McGee about disrupting the Democrat get-out-the-vote drive on election day. Tobin connected McGee with GOP Marketplace headed by political telemarketer Allen Raymond and the plot to jam Democrat telephones was hatched. Included in the jamming was a voter-ride phone line operated by Manchester firefighters.
Raymond, a high-level operative, also was the director of the Republican Leadership Conference and testified he got the okay to proceed with the plot from Kenneth Goss, a former associate general counsel for the Federal Elections Commission. Federal prosecutor Andrew Levchuk took a different view of the "dirty scheme" in his opening words at Tobin's trial, "A line has been crossed here, the line that separates old-fashioned, hard-knuckled politics from crime."
Both McGee and Raymond pleaded guilty and received jail time and fines for their role in the scheme. Tobin was convicted by a federal jury after refusing to testify in his own behalf and was sentenced last May to 10 months imprisonment, two years of supervision, and a $10,000 fine. McGee was told upon sentencing to seven months imprisonment that his crime was "hideous and strikes at the very heart of American democracy." Raymond, who got three months in jail, was lectured at his sentencing about the failure of his "personal moral compass."
The appellate court determined that a jury could find Tobin guilty of conspiracy and that Tobin's role in aiding and abetting in the crime was clear. However, the court found that a jury instruction on intent was overly broad and thus remanded the case to the trial court for further proceedings over Tobin's "unattractive conduct."
Unanswered questions, including the role of the White House, ratchet up the significance of the high-profile case. The Associated Press has reported that Tobin made over a hundred phone calls to the White House political affairs office, headed by Ken Mehlman, who has also served as chair of the Republican National Committee, between September 17th and November 22nd. Of most interest are the two dozen calls by Tobin in a three-day period while the plot was being hatched. Another questionable election day call to the White House was a 17 minute call by Jayne Millerick, then a GOP consultant and later New Hampshire Republican Chairwoman, who told the AP she couldn't remember what she talked about.
Meanwhile, Raymond's bill for the phone jam was $15,600, which appear to be linked to three $5,000 donations in the week before the election to the New Hampshire Republican Party. Disgraced Tom Delay's PAC, Americans for a Republican Majority, ponied up $5,000 and convicted lobbyist Jack Abramoff arranged for two of his Indian tribe clients to each donate $5,000 of gambling money to the GOP warchest.
It is now up the U.S. Attorney to decide whether to drop the unanswered questions and give Tobin a get-out-of-jail card or to risk political firing for seeking a retrial of the ex-Republican honcho.