STATEMENT OF PAUL TWOMEY TO SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW & SUBCOMMITTEE ON CRIME, TERRORISM AND HOMELAND SECURITY
Hearing on "Allegations of Selective Prosecution Part II: The Erosion of Public Confidence in our Federal Justice System"
May 14, 2008
"No right is more precious in a free country than that of having a vote in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined ...Competition and ideas in governmental policies is as the core of our electoral process and in the First Amendment freedom. (Justice Hugo Black, Williams v. Rhodes, 393 US 23, 30-31 (1968).
On November 4, 2002, over 2,000 volunteers and staff of the New Hampshire Democratic Party went to sleep with the hope and expectation that the next day they would take part in a fair and free election in which they would be allowed an equal chance to present the citizens of the state of New Hampshire with their policies and candidates for consideration. They expected to exercise their precious constitutional rights to vote, to freedom of association and to freedom of speech without interference or constraint. The staff and volunteers had spent thousands of hours preparing for the day when they thought they would partake in a fair and equal election. The New Hampshire Democratic Party and its candidates had spent in excess of 20 million dollars in order to present their positions to the electorate. (The Republicans spent a similar amount). Given the closeness of the polling results, both parties recognized that the key to success would lie in their ability to identify sympathetic voters and ensure that those voters went to the polls.
Both parties instituted massive "Get out the Vote" (GOTV) efforts which depended entirely upon the ability to communicate between the workers and volunteers at the polls, the campaign headquarters, and portions of the campaign set up to encourage voting, such as phone banks and rides to the polls programs. At each polling place in New Hampshire, the major parties are allowed by law to have observers present at the check in points so as to monitor who has voted. The observers crosscheck those who have voted off of a list of persons previously identified as likely supporters and communicate the results to the headquarters, enabling the party to determine which supporters haven't voted and direct efforts towards them to encourage them to vote. In addition, the Democratic Party and the Professional Firefighters Union provided phone numbers that the elderly and infirm could call for rides to the polls so that they might join their fellow citizens in self-governance.
Unbeknownst to all those seeking to participate in a free and fair election, operatives working on behalf of the New Hampshire Republican Party had entered into a criminal conspiracy which had as its goal the total disruption of the political communications of the New Hampshire Democratic Party in order to gain an unfair advantage in what was a very closely contested United States Senate election. To date, four individuals have been indicted and convicted including Charles McGee, the 2002 Executive Director of the Republican Party and James Tobin, a long time Republican operative who was at that time Regional Political Director for both the Republican National Committee (RNC) and the National Republican Senatorial Committee. (NRSC). Tobin's conviction has been vacated by the District Court on technical grounds relating to the particular charge brought against him and his case is currently being reviewed by the First Circuit Court of Appeals. Both the District Court and the Court of Appeals have repeatedly indicated that there is no factual doubt that Tobin took part in the conspiracy to disrupt the communications of the Democrats on Election Day.
A civil suit was brought on behalf of the New Hampshire Democratic Party against the New Hampshire Republican State Committee, the Republican National Committee and the National Republican Senatorial Committee. Throughout both the criminal prosecution and the civil suit, there were repeated actions of commission and omission on the part of the Department of Justice that give rise to serious questions as to whether or not there was political interference which operated to distort the judicial process.
At a minimum, a functioning democracy requires two precedent conditions: first, there must exist a set of rules and procedures that ensure that all ideas will have an equal and free access to the electoral marketplace; secondly, there must exist a mechanism to ensure that the procedural and substantive rights created by the system of rules are enforced and can in fact be exercised without interference. Many countries have the former, few have the latter; and it is only these few that are truly functioning democracies. In the United States it is the role of the Department of Justice to make real the promises of electoral access and fairness contained in the State and Federal Constitutions. It is the primary tragedy of the New Hampshire phone jamming scandal that the actions and inactions of the Department of Justice have deprived the people of New Hampshire and the country of the ability to feel secure in the exercise of the voting rights.
I. THE DEPARTMENT OF JUSTICE CAUSED INORDINATE DELAYS IN BOTH THE CRIMINAL AND CIVIL CASES
The phone jamming cases took place on November 5, 2002. In December of that year, a single Manchester police officer was able to within one day determine the identity of the two telemarketing vendors who effectuated the phone jamming. These two individuals cooperated very early in the investigation, providing information that they had acted at the direction of Charles McGee, Executive Director of the New Hampshire Republican State Committee. On February 7, 2003, an article written by investigative journalist John Distaso appeared in the Manchester Union Leader which for the first time gave the public knowledge of the involvement of the New Hampshire Republican State Committee in the phone jamming. 1
Almost immediately, the Chair of the New Hampshire Democratic Party, Kathleen Sullivan, sought the assistance of Thomas Colantuono, the United States Attorney for the District of New Hampshire in investigating and prosecuting this crime.2 The matter thereupon languished within the confines of the Department of Justice until July 28, 2004 when McGee pled guilty to an Information filed on that date. This 18 month delay is on its face both bewildering and troubling as McGee's complicity had been apparent from the beginning. By December of 2003, he had provided the FBI with a full account of the role played by James Tobin in the case, which had also been confirmed by one of the telemarketers. No significant evidence was developed against Tobin after the end of 2003, and all of it was readily available earlier.3 In April of 2004, I was informed by Alan Raymond's attorney that a plea agreement had been reached and that formal charges were imminent, yet nothing occurred for months.
After the filing of the criminal charges when an attorney acting for the Democratic Party, Finis Williams, was informed by the prosecutor that the delays were due to the extreme difficulty in obtaining authorization from higher levels at DOJ for any and all actions in the case. We have been further informed by Attorney John Durkin (counsel for Republican criminal defendants, Allen Raymond) that he was told by a DOJ prosecutor that all decisions in this case had to be made subject to the approval of the Attorney General himself who had to sign off on all actions in this case. (It should be noted that Attorney Durkin's memory is apparently at variance with that of the prosecutor with whom he spoke). As will be discussed below, the two individuals who served as Attorney General during this case both have actual conflicts of interest that would appear to rule out ethical involvement in the investigation and prosecution of the phone jamming.
The charges against both McGee and Raymond both included a description of the criminal involvement in the conspiracy of an individual who was not named but only described as an official of a national political organization, in spite of the fact that the individual was known to the DOJ to be James Tobin, formerly Regional Director for the RNC and NRSC, and then Northeast Director of the Bush/Cheney campaign. Both the failure to name Tobin and the failure to charge him in the summer of 2004 give rise to the likelihood that he was being shielded from public scrutiny until after the presidential election in November. Ultimately Josh Marshall, a journalist for TalkingPointsMemo.com, exposed Tobin on October 11, 2004 and he resigned from the campaign four days later. Had it not been for the investigative efforts of Marshall, the DOJ's failure to act would have left an individual known to be willing to commit election felonies in a key campaign position from which he was free to seek to subvert yet another election. At a minimum, the failure to protect the public was exceedingly reckless. These events suggest strongly that the indictment of Mr. Tobin was deliberately withheld in an effort to allow him to continue to operate as an official of the Bush/Cheney re-election campaign for which he was the Northeast Regional Director. Mr. Tobin was ultimately indicted several weeks after the election in December of 2004.
In December of 2007, Greg Gordon, a reporter for McClatchy newspapers wrote that Justice Department sources had informed him that the original DOJ prosecutor, Todd Hinnen, had been ordered to delay Tobin's indictment until after the 2004 presidential election. (See Attachment 13) I have attempted to confirm this with Mr. Hinnen who has stated that ethical considerations forbid him from discussing Justice Department Communications with a third party. Mr. Hinnen also indicated that he would likely be free to provide information in the context of inquiries from parties charged by law with oversight of the Justice Department, which might include both internal DOJ oversight mechanisms and the Judiciary Committee itself.
The legal proceedings against Mr. Tobin then took an exceedingly tortuous path. The trial was continued several times, each time over the vociferous objection of the victim, the New Hampshire Democratic Party. At one point, in August 2005 when the matters appeared to be close to trial, Todd Hinnen, the single prosecutor who had been assigned to the case from the beginning, was suddenly transferred from his duties at the DOJ to an assignment in the White House. This rather unfortuitous event not only removed the one individual with full knowledge of the case, but also necessarily required the substitution of new counsel who had then to attempt to master all of the facts in the case in a very short period of time. Given that the critical importance of fair elections in this country and the fact that the Department of Justice apparently has something on the order of 30,000 employees, it is difficult to understand what other than political considerations could have occasioned the transfer of this prosecutor.4 At the same time, the Department of Justice took action to interfere in the discovery process in the civil case pending against the Republican Party. On October 15, 2004, the Democratic Party was scheduled to begin their first deposition of an official of the New Hampshire Republican State Committee. Twenty minutes before the deposition, the Department of Justice apparently indicated to counsel for the Republican State Committee that it was going to seek to intervene and stop discovery in the civil case. Based upon this statement, the attorney for the Republican State Committee directed the subpoenaed witness not to appear for the deposition. (This attorney was subsequently sanctioned by the trial court for directing an individual to disobey a legal subpoena.) Shortly thereafter, the Department of Justice filed a Motion to Intervene and to Stay all Discovery in the civil case. This stay of discovery remained in effect for over a year. As a direct result of this stay of discovery, the plaintiffs were deprived of any opportunity to conduct full discovery before the Statute of Limitations had expired.