Rep. Bobbi Fiedler and her top political aide should not have been indicted by the Los Angeles County Grand Jury last month, her attorneys contend, because the state election statute under which they were charged does not apply to federal elections.
The federal "preemption" argument, bolstered by a 12-page memo from the general counsel to the clerk of the U.S. House of Representatives, is contained in a stinging legal brief filed today in Los Angeles Superior Court.
The brief urges Judge Robert T. Altman to dismiss the indictment against the Northridge Republican. Altman could rule on the dismissal motion at a pretrial hearing scheduled for Friday.
Fiedler, 48, and her chief aide and fiance, Paul Clarke, 39, are charged with offering state Sen. Ed Davis a $100,000 campaign contribution to lure him out of the Republican U.S. Senate primary. The charge stems from an obscure state Election Code law, which has no counterpart in federal statutes. The state law makes it illegal to pay or offer money to a candidate to secure his withdrawal from an election.
In their brief, defense counsels Harland Braun and Daniel Lowenstein assert that no evidence can be found on secret tape recordings--made at the behest of the district attorney's office by Davis' campaign manager, Martha Zilm--that Fiedler ever offered Davis money or any other consideration to drop out of the race.
But the lawyers further contend that "state laws regulating federal campaigns clearly and emphatically have been preempted by Congress." They cite a memo prepared last week by Congressional Counsel Steven R. Ross at Fiedler's request, which states, "It is my conclusion and legal opinion that federal law prohibits the application of (the California statute)."
The two were indicted, the defense counsels charge, due to "incompetence" and "outrageous misconduct" by the district attorney's office which has resulted in "the very reputation of California for bizarre conduct (to be) fortified."
Deputy Dist. Atty. Steven A. Sowders, head of the D.A.'s Special Investigations Division, said "there are no surprises" in the issues the defense raised but added he would not attempt to rebut them immediately because "I don't want to shoot from the hip."
"Suffice to say that we were aware of the issue of federal preemption when we initiated our investigation," he added, "and we felt that we should go forward."