The campaign for former governor and Democratic U.S. Senate candidate John Hickenlooper on Tuesday announced it would file a motion in Denver District Court to quash the subpoena issued by the Colorado Independent Ethics Commission. And they've brought in a heavyweight lawyer to handle it.
On Monday, the ethics commission voted 5-0 to subpoena the former governor to appear at a Thursday, June 4, remote hearing tied to two ethics complaints filed against him. Hickenlooper has maintained that a remote hearing violates his due process rights, in particular because he could not be in the same room with his attorney, with whom he must confer privately during the hearing.
Whether the court will act before Thursday's hearing is unknown, according to Hickenlooper attorney Marc Elias of Perkins Cole, who is Hickenlooper's personal attorney. He is being paid by the Democratic Senate Campaign Committee*, not by the state, he said.
Elias is the head of the firm's political law practice and served as general counsel to the Hillary Clinton campaign in 2016. According to the right-leaning website Influence Watch, Elias is the "lawyer of choice" for Democrats in close elections. He is also credited as the inventor of the "Super PAC."
Hickenlooper campaign manager M.E. Smith called the subpoena "unnecessary." This is nothing but a political "hit job," Smith said.
The former governor is eager to testify, Elias said. But the campaign is forced to take the steps in court because a right-wing organization is using the commission "to turn their political hit job into a political circus."
That group, which Elias didn't name, has been previously identified by the campaign as America Rising, a national conservative organization that funds opposition research on Democratic candidates. A vice president for America Rising began filing open records requests in March 2018, when Hickenlooper was still in office, to obtain his travel records.
The results of those open records requests formed the basis for the ethics complaint, filed by the Public Trust Institute, which was formed two days before the complaints were filed by former Republican Speaker of the House Frank McNulty.
America Rising's tactics are from "a playbook I've seen used over and over by Republicans," Elias said. "They're abusing the IEC process to execute that strategy."
However, for the IEC to issue a subpoena to compel a witness to testify is not a new practice for the body. Then-Secretary of State Scott Gessler was forced to testify on an accusation that he violated the ethics law when he used taxpayer money to fund travel to a Republican Lawyers Convention in Tampa in 2012.
Elias claimed that PTI has waged attacks against Hickenlooper since the beginning, adding that "it appears it is the only reason why the group came into being." PTI recently filed an ethics complaint against former Rep. Joe Salazar, a Thornton Democrat, over lobbying the General Assembly virtually the same day he left office, also a violation of Amendment 41.
Elias added that the former governor feels it is important for the people of Colorado to "hear the whole truth, not subject to a one-sided smear."
The IEC had originally scheduled the hearing for February but was unable to find a conference room for the hearing, which has been rescheduled several times since then. In preparation for a May 27 hearing, the IEC held a test run of the technology it would use for a virtual hearing, but it was plagued with technical issues, Elias pointed out.
Both PTI and Hickenlooper have maintained that a remote hearing would violate Hickenlooper's rights of due process, and that an in-person hearing is necessary. However, McNulty said last week that they would agree to the IEC's request for a remote hearing, scheduled for June 4.
The Hickenlooper campaign proposed dates in August, a suggestion made by the commission, but McNulty said that was an attempt to further delay the hearing.
Tuesday's motion will state that a virtual hearing would violate due process, which includes the right to confer with counsel. An in-person hearing, however, would give both sides an opportunity for witnesses to have "their credibility judged" by the commission as well as for and easier exchange of documents, Elias explained. The motion also will point out that PTI had agreed, as recently as May 26, that a remote hearing would violate due process.
"We are fighting for the right for Hickenlooper to have his day, offer testimony in person at a fully safe in-person hearing with the IEC," Elias said. "If it happens to be later than August, so be it."
In response to questions, Elias said it would not be feasible for Mark Grueskin, who has been representing Hickenlooper on the complaint and is being paid by the state to do so, to be in the same room as the governor for a remote hearing.
Ellias added he is hopeful for a prompt response from the court.
Joe Jackson, a spokesman for the Colorado Republican Party said in a statement Tuesday afternoon that "it's clear that John Hickenlooper is starting to 'falter' and that is why Chuck Schumer and the DSCC are dispatching known political hack Marc Elias to Colorado. Unfortunately for Hickenlooper, sending an expensive Washington lawyer won't change the fact that he violated the state Constitution. Coloradans deserve answers about this abuse of public office."
Hickenlooper is accused of accepting gifts in the form of travel and related expenses that exceed the limits set in Amendment 41. That limit was $59 at the time of the travel; it's since been increased to $65.
The ethics complaints filed in October 2018 against the former governor deal with travel and other expenses related to a June 2018 trip to Turin, Italy, for the Bilderberg Meeting, an annual forum "designed to foster dialogue between Europe and North America."
The complaints also included Hickenlooper's travel to Connecticut in March 2018 for the commissioning of the USS Colorado; private travel to New Jersey in January 2018 and to a wedding in Texas in April 2018; and travel to Jackson Hole, Wyoming, in August 2018 to attend the American Enterprise Institute’s Jackson Hole Symposium.
Both the trip to Jackson Hole and the commissioning of the USS Colorado were tied to his official capacity as governor, Hickenlooper said in his response. He submitted receipts for the Bilderberg meeting.
Correction: Elias is being paid for by the DSCC, not the Hickenlooper campaign.