By Ken Stone
When FBI agents raided Rep. Duncan Hunter’s offices on Feb. 23, 2017 — including one in El Cajon — they hauled away computers and documents. They also copied email and took staff cell phones.
So said Hunter’s own attorney Friday.
The Justice Department never confirmed or denied the seizures — although search warrant filings that mistakenly were made public revealed a raid on the office of Hunter’s campaign treasurer in Virginia.But in new legal filings, Hunter attorney Devin Burstein revealed the raids to the 9th U.S. Circuit Court of Appeals — and argued they violated his Republican client’s constitutional rights.
Burstein’s aim is to persuade the San Francisco-based court to take jurisdiction of the case and hear arguments over whether government prosecutors infringed on the Speech or Debate Clause of the Constitution.
The San Diego U.S. Attorney’s Office wants the 9th Circuit to reject hearing the Hunter appeal or at least expedite its handling of the campaign spending misconduct case set for a January trial in San Diego federal court. (Hunter denies the 60-charge indictment.)
Burstein told the 9th Circuit he can’t handle a sped-up schedule because he’s busy with a son born June 29 and a 3-year-old daughter.
“I am working a limited schedule so that I can bond with my new son, while supporting my wife and daughter,” he said. “Responding to the government’s motion in this case has taken the vast majority of my work time.”
Burstein cited nine other appeals court cases on his plate — in addition to state and federal court matters.
“Given my family commitments and obligations to in-custody clients, I respectfully request the Court deny the government’s motion to expedite,” he wrote. “Otherwise, it will be nearly impossible to effectively represent Congressman Hunter.”
In a 62-page filing, Burstein cites court precedents for hearing Hunter’s appeal on the basis of the Speech or Debate Clause — which protects members of Congress from Executive Branch prosecution of “legislative activity.”
About a dozen times, the lone Hunter lawyer handling the appeal cited a 2011 9th Circuit case called United States v. Renzi.
Not mentioned was its outcome. U.S. Rep. Rick Renzi of Arizona was convicted in a corruption trial that included conspiracy and wire fraud, some of the charges Hunter faces. Found guilty in 2013 on 17 counts, he appealed all the way to the U.S. Supreme Court.
Renzi lost and ultimately served nearly two years at a federal prison in Morgantown, West Virginia.As first reported Friday by The San Diego Union-Tribune’s Morgan Cook, Burstein argued that even if Hunter filed fraudulent campaign finance forms, it was a legislative act making him immune from federal prosecution.
“The government … failed to heed this constitutional restriction,” Burstein wrote. “It used protected communications [texts to former Hunter chief-of-staff Joe Kasper] to secure the indictment.”
And then San Diego prosecutors “gratuitously [included] in the indictment a comment from Congressman Hunter to his Chief-of-Staff that disparaged the Navy,” he said.
(That was Hunter’s text to Kasper to “tell the navy to go f— themselves” for not accommodating what the government called a requested visit to a U.S. Navy base in Naples to justify a family vacation to Italy using campaign funds. He never went.)
Burstein told the 9th Circuit: “This was in no way necessary to the charges. Rather, it was used to taint public perception (and the jury pool) in a Navy town…. That type of intimidation and embarrassment is exactly what the Speech or Debate Clause was designed to prevent.”
The government has said the Hunters began planning the Italy trip in April 2015, but didn’t try to schedule any visit to a military base until early November, “barely two weeks before their departure.”
Burstein said evidence found in the El Cajon and other office raids was used to obtain the indictment against the 50th District congressman from Alpine.
“In doing so,” he said, “the government violated the second and third core protections of the Speech or Debate Clause. … It compelled protected testimony and used protected information to prosecute.”
Thus the government’s case is “infected” by constitutional violations, he said. (Now prosecutors have a Sept. 16 deadline to respond to Burstein’s arguments.)
Another new line of defense was unveiled in the Friday filing — that the amount of money involved was trivial.
“Congressman Hunter pauses to correct an important misstatement of fact,” Burstein wrote. “The government alleges [that] ‘over the years, the Hunters spent in excess of $250,000 in campaign funds on improper personal expenses.’”
Hunter’s lawyer called this misleading since at least $116,000 was paid as salary to his wife, Margaret, as campaign manager.
“There was nothing improper in this and the government does not dispute that Mrs. Hunter performed bona fide campaign services,” he said. “Her salary was a legitimate campaign expense.”
That leaves about $134,000 in alleged misspending and reporting over more than six years, or about $22,000 a year, Burstein said.
“That represents a small fraction of Congressman Hunter’s campaign funds, and is entirely consistent with, at most, negligent accounting practices by others, not intentional fraud,” he wrote.
In the 2016 election cycle, he said, the average spending for an incumbent Republican in the House was about $1.7 million.
“Given that House terms are two years, this breaks down to $850,000 per year. Based on these figures, $22,000 is a mere 2.5% of average yearly congressional campaign spending. Calling a molehill a mountain doesn’t make it so,” Burstein said.
“But this is an issue for another day,” he said.
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