Veteran trial attorney Paul Pfingst was added to Rep. Duncan Hunter's defense team Oct. 28, but awaits Nov. 25 hearing on whether he can stay.
Whether veteran San Diego trial attorney Paul Pfingst can stay as Rep. Duncan Hunter’s trial lawyer is expected to be decided Monday. Photo via higgslaw.com

Rep. Duncan D. Hunter‘s lawyer cherry-picked grand jury testimony to show that three of the congressman’s former aides blamed his wife for spending that led to their 60-count criminal indictment, the government said Tuesday.

In fact, those prosecutors said, Hunter attorney Devin Burstein ignored Margaret Hunter’s testimony that her husband was aware she was using her campaign credit card for personal expenses and that it was a crime to do so.

Phillip Halpern,* writing for prosecutors, called Burstein efforts to keep Paul Pfingst as the Alpine Republican’s trial attorney an “absurdity.”

Government response to Duncan Hunter motion to keep Paul Pfingst. (PDF)

Halpern said in a 4-page filing that Burstein’s argument “appears tenable only because Hunter selectively quotes a mere half-dozen sentences out of more than 300 pages of grand jury testimony” in the $250,000 campaign spending misconduct case.

In other words, he said, Burstein “simply ignores the entirety of the testimony that proves inconvenient and does not even try to address the numerous examples of adverse testimony set forth in the government’s Motion to Disqualify” Pfingst, the former district attorney.

The government says Pfingst can’t serve as Hunter lawyer because of a conflict of interest — belonging to a law firm whose John Rice represented the three Hunter aides during grand jury interviews.

Halpern called Burstein’s stance an absurdity because case law makes it “perfectly clear” that once Judge Thomas Whelan finds the presence of an actual conflict, counsel must be disqualified, “and no quantity of waivers, ethical walls, or substitute ‘cross examination’ can cure this problem.”

(Former Hunter campaign treasurer Bruce Young, fundraiser Sheila Hardison and congressional field representative Joe Browning have signed waivers saying they don’t object to being cross-examined by Pfingst.)

But in sarcastic tone, Halpern wrote Whelan: “Faced with the unassailable conclusion that defense counsel must be disqualified where there is an actual conflict (i.e., joint representation of witnesses that are adverse to the defendant), Hunter sensibly argues that no actual conflict exists.”

Only parts of the three transcripts might be used to argue that Hunter was unaware of his wife’s admitted theft of campaign funds, he said.

“On the other hand, it is undeniable that there are … far more significant portions of the grand jury transcripts that demonstrate Hunter was all too painfully aware of (and even encouraged) his wife’s improprieties,” he wrote. “Those improprieties enabled the Hunters to maintain their comfortable standard of living despite their staggering debt.”

Halpern also suggests that the Pfingst conflict of interest is historic.

“This case — where the evidence consists of voluminous, adverse grand jury testimony bearing on the exact question of Hunter’s guilt — presents the most profound and striking example of an actual conflict of interest unearthed in any prior recorded case,” he said.

Halpern also says Hunter was free to choose any of 100,000-plus trial attorneys in California not faced with a conflict of interest.

“Yet he selected one of only four California lawyers that represent likely trial witnesses,” he said. “And although Hunter knew of the government’s position for at least a month, for some reason he delayed filing Mr. Pfingst’s appearance and caused the hearing to be set less than two months before trial.”

A hearing at 10:30 a.m. Monday in Whelan’s downtown federal courtroom 3C is expected to decide whether Pfingst should be removed from Hunter’s team. Hunter, who denies all charges, goes to trial Jan. 22.

Updated at 9:38 p.m. Nov. 20, 2019

*An earlier version of this report gave the name of another U.S. attorney.

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