January 08, 2013 08:38 AM UTC

Presenting The Scott Gessler Legal Defense Fund!

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• by: Colorado Pols

UPDATE: The Colorado Independent’s John Tomasic with more IEC coverage:

The travel expenses charged by Gessler come from attendance at the Republican Party convention in Florida and to a Republican National Lawyers Association meeting this past summer. Gessler was not a delegate to the Republican convention, a fact confirmed for the Independent by Spokesman for the state Republican Party Justin Miller. On his reimbursement forms, Gessler said he was conducting state business.

Peg Perl, staff counsel at Ethics Watch, told the Independent it was gratifying to see the commission stay focused on the substance of the case.

“We’re happy the commission members are taking their responsibility seriously,” she said in a phone interview. “They voted unanimously that this complaint was not frivolous when they took it up and they decided unanimously today to investigate it on the merits. Gessler’s attorneys cast aspersions on Ethics Watch, calling our motives into question, and they attacked the way the Ethics Commission conducts business. But the fact remains that these are questionable transactions with public funds and Coloradans have a right to know what happened.”

Perl added that the complaint filed by her organization was based on published news reports and documents from the secretary of state’s office obtained through an Open Records Act request. She said the commission will have greater investigative power to look into the spending through its subpoena powers.

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It’s been a long time coming, reports the Fort Collins Coloradoan’s Patrick Malone:

Colorado’s Independent Ethics Commission on Monday denied Secretary of State Scott Gessler’s request to end its investigation of his use of public funds. Gessler’s deputy, in turn, asked the commission for permission to accept monetary donations outside of the constitutional gift limit to defend him against criminal allegations.

Democratically aligned Colorado Ethics Watch filed complaints against Gessler with the Independent Ethics Commission and the Denver district attorney’s office over his use of public funds to pay for part of a trip in August to Florida where Gessler attended a GOP lawyers’ function and the Republican National Convention.

Colorado Ethics Watch also asked the ethics commission and prosecutors to investigate Gessler’s acceptance of personal payments to empty the balance of his office’s discretionary fund.

Malone reports that embattled Colorado Secretary of State Scott Gessler’s three high-powered defense lawyers, David Lane, Robert Bruce, and Michael Davis, are being paid by the state to defend Gessler in the Independent Ethics Commission proceedings against him. Not so with Denver District Attorney Mitch Morrissey’s criminal investigation of Gessler over essentially the same dubious reimbursements, and cleaning out his discretionary account of remaining funds. In a criminal case, even related to his duties, Gessler has to pick up the tab for his own legal defense–unless he can carve out a fresh loophole in Amendment 41:

In the request for an advisory opinion from the ethics commission, Deputy Secretary of State Suzanne Staiert advocates allowing donations to a legal defense fund for Gessler. In the document, Staiert argues that political rivals can financially harm public officials whose policies they oppose.

She states that donors to the fund would not curry the influence of a public official, because the public official would not directly benefit from the donations that are paid to his lawyers.

We would be more sympathetic to Gessler’s plight, recognizing that legal harassment is at least hypothetically possible against public officials. Unlike most frivolous legal harassment, though, this isn’t getting dismissed out of hand. In fact, the IEC has decided that the case has merit. That’s not proof of guilt, of course, but citizens must pay for their own criminal defense in most cases–even when they are eventually found not guilty. A criminal investigation (and prosecution, if any) has a much higher standard than, say, a frivolous civil lawsuit. Is Gessler implying that the Denver DA is a “political rival” seeking to “financially harm” him?

Also, it’s not like we’re talking about a policy issue or consequential official action being defended. Although related to his office, the underlying charge boils down to essentially misuse of funds–whatever descriptive term you want to use for that, we’ve heard several.

Either way, how would a donation to Gessler’s legal defense fund not be of “direct benefit” to Gessler, when the alternative is him paying out of pocket? And how then would that be permissible under Amendment 41? That would be awfully hard to swallow even if the circumstances surrounding this alleged malfeasance did inspire much sympathy.

Which, if you haven’t been paying attention, they don’t.