by Steve Timmer

Aug 7, 2012, 1:00 PM

St. Paul City Attorney declines silver platter prosecution

Sara Grewing, the city attorney for the City of St. Paul, was presented with the findings and decision of the of the Campaign Finance and Public Disclosure Board in its consideration of the conduct of the Republican Party of Minnesota, its former chair, Tony Sutton, and others in the matter of the 2010 gubernatorial election recount; Grewing was asked to review the information and prosecute Sutton for the gross misdemeanor that the Board found:

Tony Sutton, former chair of the RPM, violated Minnesota Statutes section 10A.29 when he redirected a contribution from Robert Cummins through CTAP for the benefit of the RPM in order to avoid disclosure. Although Mr. Sutton’s actions in this regard were intentional and criminal sanctions are available, the Board leaves the decision as to whether a criminal investigation should be undertaken to the appropriate County Attorney. [emphasis added]

Parenthetically, since the statute, Minn. Stat. § 10A.29, specifies a gross misdemeanor (still no slap on the wrist: usually a year and $3,000 max) and not a felony penalty, a city attorney has the authority to investigate and charge it.

On Friday, Grewing said to the people who have the responsibility and authority to administer the statutes in question, and who investigated the recount for six months, took thirteen depositions, and poured over thousands of pages of depositions, files and emails:

Close, but no cigar.

Well, I paraphrase. Here’s what she wrote in a letter to Mike Dean, the Executive Director of Common Cause, who lodged the complaint with the Board in the first place:

St. Paul Attorney declines to prosecute Tony Sutton

In a nutshell, and without embroidery, here is what Tony Sutton did:

1) Put three lawyers, Tony Trimble, Eric Magnuson, and Michael Toner on the recount case, retained by the Republican Party of Minnesota, immediately after the election in November of 2010.

2) These three lawyers ran up a tab of nearly $600,000 (and you thought Dayle Nolan was expensive), apparently just in November and first week of December of 2010, a sum that there was no way that the RPM could pay. Sutton asked the three lawyers to re-invoice their bills to Count Them All Properly, Inc. Which each did, without letting RPM off the hook.

3) Sutton tried to direct contributions to CTAP — the source of which he said he didn’t think had to be disclosed — to pay RPM’s lawyers’ bills. He did get one contributor, Robert Cummins, to contribute $30,000 to CTAP, which was used to — guess what? — pay the RPM’s lawyers. This was a neat way to encourage contributors to make anonymous contributions to the RPM, and Sutton admitted as much in his deposition. (See page 21 of the Board’s decision at the link above.)

Simply put, Sutton was circumventing the disclosure requirements of Minnesota campaign finance law. It is a crime to do that; here is Minn. Stat. § 10A.29:

Circumvention prohibited. An individual or association that attempts to circumvent this chapter by redirecting a contribution through, or making a contribution on behalf of, another individual or association is guilty of a gross misdemeanor and subject to a civil penalty imposed by the board of up to $3,000.

Grewing doesn’t think she can prove beyond a reasonable doubt that Tony Sutton was trying get around the law. He said, after all, he didn’t know he was doing anything wrong. He was so candid in his deposition!

When it comes time to meet you Maker, kids, I hope you all get a softie like Sara Grewing making the call.

If prosecutors always took people at their word, we wouldn’t have any criminals.

Let’s cast a little more jaundiced eye on Tony Sutton’s culpability.

Tony Sutton was the treasurer of the RPM before he failed upward to become the chair. It beggars belief to think he was unaware that having someone else paying RPM bills would be a contribution to the RPM, requiring disclosure of the identity of the person or (illegal) entity making the payment. Sutton’s claim of being the ingenue here is simply not credible. It’s incredible, to use the original meaning of the word.

The fact that Sutton asked the lawyers to re-invoice their bills to CTAP is evidence that Sutton knew it was a subterfuge.

It is also metaphysically impossible for Sutton to have relied on advice of counsel for the scheme as he claims. The attorney in question, Michael Toner, denies under oath that he gave the advice that Sutton asserts, and Sutton cannot produce any written or corroborating testimony that he received it. Moreover, Sutton hired the lawyers on the RPM’s tab right after the election, and CTAP was not even incorporated until December 3, 2010, just before Emmer conceded. Sutton’s claim here is also incredible.

The individual who incorporated CTAP, Dan Puhl, a Republican operative from Washington, D.C., did so thinking that CTAP would actually conduct the recount, retain lawyers, and raise money anonymously as an independent entity. But Puhl was late to the game; CTAP never engaged in any recount activity or advocacy; it certainly didn’t hire any lawyers.

All of the recount efforts were undertaken by the Republican Party of Minnesota and its chair, Tony Sutton, through the lawyers they hired. Again, the question arises: why would the lawyers re-bill CTAP when they never did any work for it?

The charging decision of the St. Paul City Attorney’s Office needs to be reviewed by another public law office, perhaps one more experienced with political or white collar crime.