Rep. Duncan D. Hunter looks toward moderator at forum while he was under criminal indictment. Photo by Ken Stone

Federal prosecutors on Tuesday argued that Duncan Hunter’s indictment shouldn’t be dismissed as a result of several members of the DOJ’s San Diego office attending a 2015 Hillary Clinton fundraiser.

Their response to Hunter lawyers and allegations of political bias came the same day they sent a sentencing recommendation to Judge Thomas Whelan that asked for a 14-month prison term.*

“In his latest filing, Hunter resurrects an argument previously denied by this Court involving a routine invitation by the Secret Service to attend an event at which the agency provided protective service,” prosecutors said.

San Diego federal prosecutors’ answer to Duncan Hunter’s dismissal motion. (PDF)

“Once again … he fails to establish a rational basis for the Court to conclude that his indictment (for which he has pled guilty and accepted responsibility) was motivated by anything other than legitimate prosecutorial considerations.”

Writing for the local U.S. Attorney’s Office, Phillip Halpern also revealed previously unreported details of how San Diego federal prosecutors came to investigate the resigned Republican congressman.

Halpern said he informally discussed opening an investigation into Hunter’s spending with FBI Special Agent Erin Phan following the public release of a letter by ethics watchdog CREW in April 2016.

Phan — who earlier took part in investigating convicted San Diego congressman Randy “Duke” Cunningham — then checked with her boss, then-FBI Supervisory Special Agent Joey Mignon, in charge of the San Diego field office’s public corruption squad.

“Agents Phan and Mignon determined that the matter warranted additional review,” Helpern wrote.

In early May 2016, Phan informally discussed a possible investigation with Richard Pilger, director of elections crimes at the Department of Justice.

Halpern also told Mignon he intended to discuss with Assistant U.S. Attorney Emily Allen — one of three in the office who attended the La Jolla fundraiser — the possibility of assigning her to the investigation.

Docket listing in Hunter case indicates prosecutors submitted 215 exhibits in their sentencing memorandum, which the judge allowed to exceed 25 pages.

On June 9, 2016, Halpern and Allen sought approval from the Department of Justice’s Criminal Division, Public Integrity Section, to open an investigation. Pilger officially OK’d the probe the following day.

Four days later, Phan emailed FBI headquarters in Washington that the San Diego Field Office was opening a full investigation into Hunter’s campaign spending. (He’ll be sentenced March 17 on his guilty plea to one count of breaking campaign finance laws.)

Approving the investigation were FBI Assistant Special Agent-in-Charge Daron Borst, Chief Division Counsel Michael Leshnower and Supervisory Special Agent Mignon.

Prosecutors’ sentencing memo for Duncan Hunter. (PDF)

In Tuesday’s response to a motion dismiss the indictment (or recuse the San Diego DOJ office), Halpern wrote that the only real difference between defense pleadings in July 2019 and the latest one March 3 was that Hunter’s second recusal motion attached a handful of added emails that confirmed that prosecutors were attending at the request of the Secret Service, who “were very gracious hosts.”

“Even if … Allen and [Assistant U.S. Attorney Alana] Robinson had initiated this investigation, it matters naught,” Halpern wrote. “Indeed, it does a disservice to our system of Justice to assume that simply because career prosecutors, agents, or for that matter judicial officers, supported — or voted for — a particular candidate of one party that they would be unable thereafter to investigate or preside over a trial of any politician that belonged to a different party, let alone require the recusal of an entire office.”

He concluded: “This line of thinking is anathema to the democratic process and antithetical to the fair administration of justice.”

Reacting to the latest filings, CREW spokesman Jordan Libowitz noted reporting by Morgan Cook of The San Diego Union-Tribune.

“The genesis of this investigation was local reporting, CREW’s complaints that followed, and more local reporting that built off of them,” he told Times of San Diego. “It is a victory for the watchdogs.”

Libowitz said Hunter’s guilty plea shows “what we all knew all along, that he egregiously, repeatedly broke the law. The conviction is a clear message that you cannot abuse your campaign for your own personal benefit. The government’s filing shows just how important the American people are.”

*Correction: An earlier version of this story said the prosecutors’ sentencing memo was unavailable to the public.

Updated at 8:43 a.m. March 11, 2020

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