November 10, 2015

United States Attorney Carmen Ortiz’s Captain Ahab-like pursuit of Speaker Robert DeLeo persists, with reports of grand jury testimony from former Probation Commissioner John O’Brien, and the leak of DeLeo’s testimony to Independent Counsel Paul Ware. But we’ve seen this show before.

Before I get to that here’s my favorite story from John McDonough’s Experiencing Politics: A Legislator’s Stories of Government and Health Care. McDonough was a House member and a vote came to the floor for a tax break for Raytheon. No one had lobbied him on it, his district had no preference, and he didn’t feel strongly about it, but it looked like corporate welfare so he voted No. Party whip Joan Menard approached him and told him that Speaker Charles Flaherty would like a Yes vote. As Flaherty peered down from the rostrum McDonough asked Menard why the speaker wanted the vote switch since the bill would pass easily anyway. I don’t know, said Menard, he just does. McDonough thought to himself, this bill doesn’t matter to me but I need the speaker’s help on some legislation that does matter later in the session and here’s a chance to curry a bit of favor. McDonough changed his vote to Yes.

Should McDonough and Flaherty have been indicted?

Actually Flaherty was indicted but not for anything to do with Raytheon. After the Globe wrote of a December trip to Puerto Rico the speaker had taken at the expense of lobbyists, the U.S. Attorney began investigating but found nothing indictable. After two years of that the feds turned their attentions to Flaherty’s relationship with a shady parking lot owner. Again, no indictment. Crashing on ahead, the government seized on a thirteen year old tax case.  Here’s how I described it in Piling On in CommonWealth Magazine in 2011:

The Boston Globe’s Frank Phillips reported that the US attorney was under pressure in the legal community to drop the investigation because the case was not deemed “worthy of a federal investigation and federal resources.” Globe columnist David Nyhan had it about right:  “The gist of the feds’ case, as I get it, is that in 1983 he listed $5,800 in business expense deductions for which he cannot provide documentation now,” he wrote of Flaherty. “This is some kind of reach, plucking deductions from taxes of 13 years past. But the feds needed something, anything, to justify their expensive political chase.” Jack Beatty, biographer of James Michael Curley and thus something of an expert on roguish politicians, told the New York Times that Flaherty had been “railroaded.”

The pursuit of Deleo has the feel of the Flaherty chase. The US Attorney has relentlessly hunted DeLeo: dragging an ill and suffering Sal DiMasi across the country in a bus, immunizing O’Brien, pressuring numerous legislators. The USAO named DeLeo an unindicted conspirator, theorizing that he used his access to Probation Department jobs to influence legislators to vote for him for speaker. None of that panned out so the U.S. Attorney – as it did in the Flaherty case -- is turning elsewhere in hopes of finding something indictable.

It also has somewhat the feel of the pursuit of Speaker Thomas Finneran by yet another U.S. Attorney. Let me return again to Piling On for civil liberties attorney Harvey Silverglate’s defense of Finneran, drawn from Three Felonies a Day: How the Feds Target the Innocent.

Silverglate recognizes that Finneran may have been practicing a form of political cuteness, Massachusetts style, when he testified about his supposed limited role in redistricting. To someone in Finneran’s position, detailing his own dominance over the legislative process in the House would be lending a sort of insult to his members. The federal judge who ignited the investigation of Finneran looked at the facts far differently than someone familiar with the folkways of state politics. While US Attorney Michael Sullivan, as a former state representative, might have been expected to accurately divine the practices of Beacon Hill, he might also have other interests. In taking apart the legal basis for the indictment Silverglate writes: “to take the giant leap that Sullivan did, transforming the everyday operation of politics and its accompanying decorum into felony perjury, betrays a troubling misunderstanding of basic American politics, assuming, of course, that Sullivan’s misunderstanding was genuine rather than driven by his own ambitions.”

In other words, the U.S. Attorney (purposely or otherwise) does not understand how legislators work. Instead it projects its own pure but naïve conception of what a perfect democracy would work like if only the legislature consisted of career prosecutors and ethics lawyers – anything but real legislators in a functioning legislature elected by the people. Or maybe it is ambition – political corruption cases are a proven way for a prosecutor to advance one’s own career.

So in the Raytheon example, should Flaherty or McDonough have been indicted? Flaherty used his power to get something of value – McDonough’s vote. McDonough changed his vote because he wanted something of value – help from the speaker on future legislation. There was no quid pro quo but there was understanding between professional politicians.

I’ll return to the political culture of this topic soon but for now, as reported by CommonWealth’s Bruce Mohl, the SJC has asked three state and federal law enforcement agencies and the SJC’s former independent counsel to investigate how DeLeo’s testimony was leaked to the Globe. Back in my attorney days I was sometimes frustrated by the appearance of secret testimony anonymously leaked to the media. In an exchange on Twitter I asked Mr. Mohl if he could recall another request like this, and he responded that he could not. However, in this case Chief Justice Ralph Gants has asked the Office of Professional Responsibility in the Office of the Attorney General to investigate the Massachusetts U.S. Attorney. Wow.

U.S. Attorney, Carment Ortiz, Robert DeLeo

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