by Sarah Rumpf
Yesterday, the Texas Ethics Commission (“TEC”) held a public hearing regarding a complaint against Breitbart contributor Michael Quinn Sullivan and Empower Texans, the organization he leads, alleging that Sullivan improperly failed to register with the State of Texas as a lobbyist.
Despite having more than two years to put their case together, major weaknesses in the TEC’s case were exposed including political vendettas that motivated the complainants, failures to properly authenticate evidence, repeated attempts to undermine Sullivan’s attorney-client privilege rights, witnesses who violated procedural rules, inability to counter arguments presented by Sullivan’s counsel, and Commissioners whose own comments revealed their predetermined desire to rule against Sullivan.
The hearing lasted almost twelve hours, including breaks, and was the first in the twenty-six month history of this matter to be fully open to the public. Counsel for the TEC, Ian Steusloff, kicked off the day with an opening statement that argued that Empower Texans’ “fiscal responsibility index” scorecards, which grade legislators based on their votes and are posted on the Empower Texans website, along with Sullivan’s criticisms of Speaker Joe Straus, constituted lobbying. Steusloff said that the issue was “not just about scorecards,” but rather “who is paid to influence state government.”
Joe Nixon, Sullivan and Empower Texan’s attorney, countered that the “influence” standard in the law was too vague and there was insufficient evidence to prove the allegations against Sullivan. He said that regardless, the media exception afforded protections for his activities and an exemption from the statutory requirement to register as a lobbyist. Citing the Citizens United case, Nixon stated that where the law imposes a restriction on free speech but extends an exception to the media, then that same exception must be extended to all.
The TEC’s first witnesses were two politicians who signed the complaint, State Representative Jim Keffer, R-Eastland, and former Representative Vicki Truitt, R-Keller, who had earned low scores on the Empower Texans scorecard and are considered to be allies of Speaker Joe Straus. Truitt lost her seat in 2012 when a more conservative challenger defeated her in the primary. During Nixon’s cross-examination, both Keffer and Truitt admitted that they had not drafted the complaint they signed, but that it had been prepared by Steve Bresnen, an attorney and lobbyist for the Texas Trial Lawyers Association. They also admitted they had gotten involved not out of their own initiative, but because their consultant, Brian Eppstein, had suggested the idea to them.
Truitt also faced questions from Nixon about her inaccurate mention of the complaint on one of her campaign mail pieces, which stated that “formal ethics complaints have been filed against [Sullivan and Empower Texans] for false attacks.” The complaint does not allege that any statements by Sullivan were false (merely that he should have registered as a lobbyist to make them) and the TEC issued a resolution late last year condemning the mention of ethics complaints filed with the TEC in campaign communications.
More troubling were the violations of procedural rules by Truitt and Bresnen. Before testimony began, the attorneys for both sides had agreed on a legal procedural rule known as the rule of sequestration. The rule requires witnesses to leave the hearing room when they are not testifying and to refrain from accessing information about the proceedings or making public comments until their testimony is concluded and they are released. The purpose of the rule is to ensure that witnesses testify based on their own knowledge and recollections, and are not unduly influenced by testimony from other witnesses or interactions with the public. Both Truitt and Bresnen violated this rule, with Truitt getting caught referring to notes she had prepared on her iPad before the hearing, and Bresnen getting caught tweeting during the lunch break when he was in the middle of his testimony. Nixon moved to strike their testimony when these violations were discovered, but those motions were denied. Truitt was instructed to email her notes to counsel for both sides and Bresnen was instructed to stay off Twitter until his testimony was concluded (disclosure: some of Bresnen’s improper tweets were to this writer, but we have never met or interacted before yesterday).
When Sullivan was called to testify, he answered the first question—to state his name for the record—but then refused to answer any other questions, simply smiling and repeating, “On the advice of counsel, I’m not going to be testifying today.” Steusloff and the Commissioners both displayed annoyance and even exasperation at times from Sullivan’s refusal to testify, stopping their questioning periodically to lecture him on why they thought he should answer their questions. Nixon explained to the TEC that his client was refusing to testify based on his rights under the First, Fourth, and Fourteenth Amendments, not the Fifth Amendment, as many originally assumed when Sullivan first refused to answer.
After the hearing concluded, Nixon spoke exclusively with Breitbart Texas regarding this legal strategy, characterizing the TEC’s comments to his client that he should claim the Fifth Amendment instead as part of “a game they wanted to play.” “They wanted him to say ‘I refuse to testify because of my rights under the Fifth Amendment,’ because it sounds like you’re guilty of something,” said Nixon. “We had other privileges that we could utilize. We weren’t going to play their game.” Nixon also pointed out the potentially negative inference that could legally be drawn if Sullivan had pled the Fifth Amendment in yesterday’s hearing. “In a civil case, you can utilize the inference to imply guilt, although, to an extent, it’s a legal issue. I wasn’t going to give them the opportunity to do that. Because I didn’t need to do. They were going to make a big deal, ‘he pled the fifth!’ That speech at the end, the chairman’s speech was planned.” The actions of the Commissioners seemed to back up Nixon’s concerns about pleading the Fifth, with TEC Chairman Jim Clancy commenting after his last attempt to get Sullivan to testify, “well, then, the witness is going to have to bear the consequences of his actions.”
Throughout the hearing, there was frequent confusion about basic evidence rules that should have been well known to attorneys. Nixon made multiple timely objections to the admission of evidence based on the hearsay rule (e.g., documents prepared by Truitt’s chief of staff but of which she had no personal knowledge), improper authentication (e.g., documents where a clear chain of custody was not established), and also pushed back strongly against repeated attempts by Commissioners to get Sullivan to explain why he would not testify. The Commissioners themselves expressed confusion about some of the rules, with Commissioner Bob Long commenting at one point, “I’m not a lawyer. I don’t even understand half this stuff.”