Delaware Auditor Kathy McGuiness was seated at the defendant’s table Thursday as a judge heard arguments over whether he should dismiss one of the felony charges against her.
McGuiness, who has pleaded not guilty to multiple public corruption misdemeanors and felonies, did not address the media before or after the two-hour hearing in which Superior Court Judge William Carpenter questioned attorneys on their legal arguments but made no decisions regarding the pending motions in the case.
Those motions center on an effort to dismiss McGuiness’ criminal intimidation charge as well as a pending request seeking to compel prosecutors to produce information regarding nepotism in state government.
In October, McGuiness became the first statewide-elected official in Delaware history to be indicted while in office when prosecutors accused her of crimes tied to giving her daughter a job in her office, allegedly orchestrating payments to a former campaign consultant in a way that avoided regulatory scrutiny and spying on and discriminating against employees who raised questions about it.
That last allegation is the root of a felony intimidation charge, the most serious McGuiness faces in terms of potential punishment.
Last month, Steve Wood, her attorney, asked the court to toss out that charge, claiming McGuiness’ indictment document didn’t allege conduct that legally fits the definition of the felony intimidation crime.
Much of Thursday’s hearing dealt with Wood’s legal argument that prosecutors were required to state in McGuiness’ October indictment that the auditor knew of an investigation, knew of potential witnesses and took specific actions against those witnesses.
Her initial indictment, the legal document that formalizes the criminal case against her, is intended to put the defendant on notice as to what actions prosecutors will seek to convince a jury are violations of the law.
McGuiness’ office was served with a search warrant as part of the Attorney General’s investigation into her in September last year. The October indictment alleged she engaged in felony intimidation in a period that includes two years leading up to that warrant.
That indictment states that “several whistleblowers” expressed concerns about “misconduct” within McGuiness’ office, including the consultant contract and hiring of her daughter.
It states that McGuiness “engaged in a course of conduct” to surveil potential whistleblowers’ emails in her office. The indictment adds that she “discriminated” against employees who questioned her misconduct.
All of this amounts to McGuiness, “knowingly and with malice” attempting to “prevent or dissuade any witness from attending or giving testimony at any proceeding or inquiry authorized by law,” the indictment states, quoting from the legal definition of the intimidation crime.
At Thursday’s hearing, Wood argued the indictment is “simply not specific.” He argued that it does not state McGuiness was aware of an investigation, does not state she was aware of witnesses and therefore the intimidation charge should be dismissed.
Mark Denney, the lead prosecutor, said Wood was relying on a “manufactured construct” to make such an argument. He and judge argued over what the definition of the crime requires prosecutors allege.
Denney argued that prosecutors need only to show that McGuiness was aware of potential witnesses to the actions that led to the other criminal charges against her and that she took actions to dissuade or intimidate those potential witnesses from participating in an investigation — regardless of whether an investigation had been formalized.
Wood also accused prosecutors of seeking to remedy the issues he’s raised by re-indicting McGuiness two weeks ago. The new indictment keeps the same charges but adds new allegations of intimidation that have occurred since the original, October indictment.
PROSECUTORS: State auditor ‘castigated’ employees after she was criminally indicted
The new indictment claims McGuiness called meetings in February and March and expressed displeasure that information was leaking from the office and chastised employees for watching a recording of a public meeting where she received critical questioning from state lawmakers.
Six days after the February meeting, an employee, whom the indictment describes as a witness, received a formal reprimand from leadership in the auditor’s office.
The reprimand was partially for the employee “implying or directly stating” that someone in the office was involved in “illegal conduct,” and making other comments pertaining to the auditor’s work and criminal case.
The employee was told, by a person the indictment does not identify, that their statements were “dangerous to morale” and that they were “hereby notified that it is inappropriate to discuss certain topics,” including individuals’ court cases and their opinions on the legality of “an individual’s employment,” in that office, according to the updated indictment.
The updated indictment states that the episodes made employees “feel uncomfortable” and believe they were “warnings not to continue to report wrongdoing.”
Wood argued that the updated indictment is also legally deficient.
He told the judge that “confidentiality” is regularly the top agenda item on all of McGuiness’ monthly auditor’s meetings, that the new indictment does not say that there were witnesses at the March meeting or that McGuiness knew who will be witnesses in the case. He also stated that her name was nowhere on the employee reprimand detailed in the reindictment.
Carpenter, the judge, did not make any decision on the motion to dismiss the intimidation count. He also heard arguments on Wood’s request to require prosecutors provide information about nepotism in state government.
Specifically, he’s asked prosecutors to provide documents reflecting any contracts for professional services entered into by the attorney general or any other state entity for less than $50,000, the threshold for state entities putting a contract out for competitive bidding.
READ MORE: In defense of her criminal charges, auditor claims nepotism widespread in state government
Wood also has asked the court to force prosecutors to provide information regarding any person employed or contracted by the Attorney General’s Office who also made an in-kind campaign contribution to Attorney General Kathy Jennings’ political campaign or who worked for that campaign.
At the hearing, Wood, the judge and Denney argued about how such information would be relevant to the case and how the parties could feasibly quantify similar conduct in state government.
The requests pertain to the charges that allege McGuiness structured payments and a no-bid contract for a campaign consultant as well as her hiring of her daughter.
Wood claims that examples of similar conduct in state government exist, that prosecutors are legally obligated to provide such information and that it will bolster a potential selective prosecution defense. That defense would argue to the judge or a jury that McGuiness is not guilty because prosecutors have ignored similar infractions elsewhere in state government and are unfairly targeting the auditor.
Wood said his Freedom of Information requests to the Attorney General’s office and the office of Governor John Carney were rejected because he is representing McGuiness.
“I’m simply looking for the facts,” Wood told the judge.
Carpenter jokingly suggested Wood ask press members gathered in the courtroom to provide him such information.
Last year, DelawareOnline/The News Journal requested of state officials in the Office of Management and Budget for an account of no-bid contracts entered into by state officials in recent years under FOIA law. That request was not responded to for months and was ultimately rejected.
Denney argued that Wood’s requests are irrelevant to the charges. He said the prosecutors are aware of no comparable instances of such activity in state government.
He said McGuiness isn’t charged for engaging in a no-bid contract or because that contract was with a campaign consultant that formerly worked for one of McGuiness’s political campaigns.
He said the criminal charges center on how she allegedly structured payments from that contact to avoid regulatory scrutiny, an allegation Wood says is untrue and last week filed paperwork seeking the court dismiss that charge as well.
At one point, Wood interjected, offering to submit a sealed list of similar infractions he was aware of if Denney agreed to immediately indict those officials or dismiss the indictment against McGuiness.
Carpenter didn’t make a decision on the information request either, but did indicate that McGuiness’ May trial date may need to be rescheduled, particularly if he grants Wood’s request to compel more information from prosecutors.
“This is too serious to risk the process,” Carpenter said.
Wood told the judge that McGuiness would object to any delay past June. McGuiness is up for re-election this year but has not publicly discussed how the pending trial may affect her candidacy for a second term.
“The bad news for Ms. McGuiness is that the court gets to schedule the trial,” Carpenter said.
Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareon
