By Ken Stone
Three aides to Rep. Duncan D. Hunter told a grand jury that his wife, Margaret, was behind “virtually all of the spending issues underlying” their indictments for campaign spending misconduct.
“The subject witnesses are not adverse to Congressman Hunter,” says defense lawyer Devin Burstein in a motion filed Monday. “They are exculpatory. All three support the defense’s position that, while mistakes were made by the campaign, Congressman Hunter did not act with criminal intent.”
The motion aims to let the GOP congressman keep his preferred trial lawyer. In it, former Hunter campaign treasurer Bruce Young is quoted during the secret proceeding.“These questions have been concerned mainly with Margaret’s spending; is that correct?” A prosecutor asked, citing earlier grand jury testimony.
“Correct,” Young replied.
“Would it be fair to say that during the time you were treasurer you didn’t have similar problems with the Congressman’s spending?” The questioning continued.
“Talking about Duncan D. Hunter? … That’s correct,” Young said.
Burstein is trying to persuade a federal judge to let Hunter retain veteran trial lawyer Paul Pfingst despite efforts by government prosecutors to have Pfingst disqualified for a conflict of interest.
The government says Pfingst’s colleague John Rice at Higgs Fletcher & Mack represented the three witnesses at the grand jury.
But in his 28-page motion, Burstein repeats public arguments that Young, campaign fundraiser Sheila Hardison and congressional field representative Joe Browning signed waivers saying they don’t object to being cross-examined by Pfingst.
“In the trial context, the danger posed by a conflict is simple – the defendant’s lawyer will pull punches as a result of dual loyalty — [that] he or she will not act as a zealous advocate due to a conflict of interests,” Burstein wrote.
But no such concern exists in this case, he said — even though prosecutors call the trio “adverse witnesses” to Hunter who would provide evidence against the Alpine congressman.
“The witnesses played central roles in this case and have already provided damaging testimony to the grand jury,” prosecutors said in a Nov. 11 filing. “At trial, they are expected to testify consistent with their adverse grand jury testimony.”
In rebuttal, Burstein wrote that the government has offered no “plausible scenario in which Mr. Pfingst will do anything other than represent Congressman Hunter to the best of his abilities. And the signed waivers allow him to do just that – no punches pulled.”
As an “added layer of protection,” Burstein says the defense has agreed Pfingst doesn’t need to cross-examine the three former Hunter aides. Burstein says he himself may handle that chore.
Burstein said Hunter and Pfingst — the former county district attorney — have a special bond because both have successfully run for office.
“This gives Mr. Pfingst a unique understanding of both his client and this case,” the defense lawyer said of the attorney added Oct. 28.
In his motion, Burstein said Browning explained that Margaret Hunter was “in control” and that Hunter believed what his wife told him about spending.
“Ms. Hardison testified that, given his other responsibilities, [she] did not feel that [Congressman Hunter] was really paying attention to the financial part,” he wrote.
Burstein told Judge Thomas Whelan ahead of a Nov. 25 hearing on Pfingst that such testimony “aligns with” what Hunter has always maintained.
“While he could have – and perhaps should have – kept a closer eye on campaign
spending, he did not act with criminal intent,” the motion says. “Accordingly, while Mr. Young, Mr. Browning, and Ms. Hardison are technically government witnesses, they are not adverse because the substance of their testimony favors the defense.”
Last Monday, prosecutors said Higgs Fletcher & Mack shouldn’t be allowed to represent Hunter because the firm “is faced with an actual and unwaivable conflict of interest because it has represented since early 2017 — and continues to represent — multiple witnesses in this action, who have already provided adverse testimony leading to Hunter’s indictment and are expected to provide equally damaging adverse testimony at trial.”
But the new motion tries to distance the law firm colleagues, and Pfingst and Rice have signed statements that they have a “wall between them and have not shared client confidences, or even discussed the substance of the case.”
The defense lawyer also argues that removing Pfingst would “likely” lead to further trial delays — beyond the current Jan. 22 date.
“A new lawyer cannot be expected to prepare for this trial in less than two months,” Burstein said. “And denial of a continuance would violate Congressman Hunter’s right to a fair trial and effective representation (as would the denial of Mr. [Gregory] Vega’s motion to withdraw [as Hunter’s lawyer]).”
Even if Hunter is convicted, he said, denying the congressman his choice of counsel “would likely result in another trial. Counsel of choice is one of the rare constitutional rights deemed so fundamental that its erroneous denial is structural error.”
Margaret Hunter, now listed as living in La Mesa, has pleaded guilty in the case and is set to be sentenced April 13 on one count of criminal conspiracy.
The 50th District incumbent — facing three Republican and a Democratic opponent in the March 2020 primary — has pleaded not guilty to 60 counts of conspiracy, falsification of records, wire fraud and prohibited use of campaign funds related to spending $250,000 of campaign funds on private items and travel.
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