Judge found sworn testimony ‘belied’ the facts
Caroline Hunter, a Bush-appointed Federal Election Commissioner who remains in office, provided misleading statements under oath in an effort to conceal Republican National Committee involvement in vote suppression activities during the 2004 presidential election, a Raw Story investigation has found.
Legal experts say Hunter’s submission of such statements under oath is a serious ethical and professional breach which could warrant a bar review and potential disbarment. At the time, Hunter was serving as deputy counsel to the Republican National Committee.
How a young Republican lawyer became a central witness
In the final days of the 2004 presidential election, the Democratic National Committee files an injunction against the Republican National Committee in New Jersey federal court, alleging its involvement in using lists of returned mail to challenge 35,000 newly registered Ohio voters. This tactic, also known as voter caging, is historically employed to suppress votes from minority and low-income citizens who tend to vote Democratic.
At the time, Republican Party officials are busy stoking claims that voter fraud at the polls is a grave threat to the country.
On Oct. 20, 2004 in Columbus, Ohio, Republican National Committee Chairman Ed Gillespie and Ohio Republican Party Chairman Bob Bennett decry rampant voter fraud in the state.
“The reports of voter fraud in Ohio are some of the most alarming in the nation,” Gillespie asserts.
Two days later, the Ohio Republican Party challenges 35,000 voters, most of whom live in urban, Democratic-leaning areas.
On Nov. 1, the showdown over the injunction plays out in Newark Federal District Court.
“Is the RNC discussing the political aspects of wide-scale voter fraud? Absolutely, your Honor,” argues RNC counsel Bobby Burchfield. “They’re talking about it every day, because it’s a pervasive problem.”
Federal Judge Dickinson R. Debevoise listens to arguments in the case. Debevoise is intimately aware of the laws against voter suppression.
In 1981, Judge Debevoise presided over a case in which the Democratic National Committee accused the RNC of violating the Voting Rights Act by using vote caging tactics in predominantly minority precincts in Newark and surrounding areas.
In 1982, the RNC agreed to settle the lawsuit by entering a consent decree that prohibited it from using “ballot security” measures, meaning any efforts to prevent allegedly unqualified voters from casting a ballot. The decree was revised in 1987 to include a provision that required the RNC to first gain prior approval from the court before engaging in such measures.
Thus, the pivotal focus for Judge Debevoise in 2004 rests on whether Republicans have violated the decree.
Sworn testimony from a young Republican lawyer plays a central role in the RNC’s defense. That lawyer’s name is Caroline Hunter.
In her affidavit (pdf), submitted under penalty of perjury, Hunter claims “the RNC is not initiating, controlling, directing, or funding any programs of ‘voter challenges’ including the effort by the Ohio Republican Party to challenge voter registrations in Ohio.”
“Although representatives of the RNC were involved in the emails discussing the possibility of the challenges described above,” she continues, “the RNC has not initiated any challenges to the absentee ballots in Ohio or in any other state.”
Burchfield tells the court that Hunter’s affidavit is proof the RNC isn’t violating the decree. Rather, he says, her statement demonstrates the party was diligent to avoid “initiating, controlling, directing or funding” any voter challenger programs.
Yet her affidavit is submitted along with email communications showing RNC members engaging in vote caging activities in Ohio. They also demonstrate that the RNC worked in concert with state Republican Party officials. Hunter is on a few of the emails but her involvement is unclear.
After hearing arguments from both sides, Judge Debevoise rules that the RNC has violated the decree.
In granting the injunction, Debevoise specifically addresses Hunter’s statement denying that the Party was involved in vote caging activities. He finds her sworn testimony — made as a witness — unsupported by the facts in the case.
“Miss Hunter,” Judge Debevoise tells the court, “states in a conclusory way that, ‘To the best of my knowledge, after due investigation, the RNC is not initiating, controlling, directing, or funding any programs of voter challenges as described above, including the effort by the Ohio Republican Party to challenge voter registration in Ohio as alleged.’”
“Miss Hunter’s information and belief,” he concludes, “is belied by the evidence developed during the brief period of discovery.”
Experts raise questions of legal ethics
Provided with documents from the trial, legal experts interviewed by Raw Story characterized Hunter’s statements to the court as a potential breach of legal ethics.
Gerry Hebert, an election law expert who spent over twenty years as a Justice Department attorney prosecuting voting rights cases, addressed Hunter’s attempt to linguistically circumvent the dictates of the consent decree.
Hebert, currently the executive director at the Campaign Legal Center, pointed out that although Hunter said the RNC had not been involved in “initiating, controlling, directing, or funding” voter challenges, her statement was merely “very carefully worded.”
“It doesn’t mean they were not aware, it doesn’t mean they did not participate, it doesn’t mean that they didn’t assist in the programs of voter challenges of the Ohio State Republican Party,” he said.
“The judge makes findings of fact that directly contradict her statement,” he added, after reviewing the court record. “At a minimum, it strikes me as misleading.”
Raw Story located the corresponding passage in the 1987 Consent Decree, which supports Hebert’s findings. It states:
“[T]he RNC shall not engage in, and shall not assist or participate in, any ballot security programs unless the program (including the method and timing of any challenges resulting from the program) has been determined by this Court to comply with the provisions of the Consent Order and applicable law.”
While legal experts confirmed that Hunter’s statements shield her from perjury charges, they argued that they still pose ethical problems that potentially could result in her disbarment.
They also made clear that this was not a statement by a lawyer in open court to the judge, but rather an affidavit signed under oath by a witness in the case for one of the parties.
“If a lawyer makes a misleading statement in sworn testimony to the court,” said Hebert, “and then the court not only finds that the statement was misleading but it turns out to be ‘belied’ by the actual facts in the case, I think a state bar would be interested in that.”
“It could be viewed as a serious ethical breach for an attorney, one that might warrant a review by the state bar in which she’s accredited and may be grounds for disbarment,” Hebert continued.
Deborah Rhode, a legal ethics professor at Stanford University, agreed.
“Absolutely,” Rhode said, when asked if this would create ethical problems for Hunter. “It should be a basis for concern.”
“In a perfect world,” Rhode added, a state bar would review Hunter’s actions, but she didn’t think it was likely to occur.
Regardless, Hebert said, “It’s very troubling that a lawyer who presently sits as a federal official at the FEC would submit a document under oath to a court that a court finds is contrary to fact.”
Joe Rich, a former Voting Section chief at the Justice Department who spent nearly forty years at the agency, said he found it disturbing a sitting FEC commissioner provided misleading statements under oath.
“She was discredited by the judge,” Rich told Raw Story, stressing the severity of her actions. “He didn’t find her credible.”
FEC spokeswoman Judith Ingram declined to comment on Hunter’s behalf.
Emails show Hunter received caging email
Hunter was also named as a recipient on one of the most incriminating RNC emails discussing vote-caging activities in Ohio. The message included plans to roll out similar activities in Florida, Pennsylvania, Nevada and New Mexico.
Her name, along with others in the RNC hierarchy, appears on other emails as a scheduled participant in conference calls to discuss voter challenges. The subject lines on the emails are “Cuyahoga Returned List” and “Voter Reg Fraud Strategy conference calls.”
Legal experts say that without further proof, Hunter can claim that as RNC deputy counsel, her inclusion in the email and conference calls was only to advise colleagues on how to stay within the legal bounds of the consent decree and other election laws. They agreed this is a separate matter from the misleading statements she provided under oath.
But while there is a five-year statute of limitations on perjury in federal courts, Hebert said he wasn’t aware of any statute of limitations for a state bar review of Hunter’s affidavit.
Part II: Ideology trumps experience in Federal Election Commissioner’s rise
Brad Jacobson is a contributing investigative reporter for Raw Story.