In a high-stakes legal drama that stretches from Los Angeles to Washington, D.C., federal prosecutors are poised to file criminal campaign finance charges against a prominent L.A. attorney, but his lawyers are fighting back, questioning whether his outspoken criticism of the Bush administration has made him the target of a political prosecution.
A federal grand jury has been secretly probing whether attorney Pierce O'Donnell violated federal campaign laws by asking employees of his law firm to contribute to the 2004 presidential campaign of John Edwards and then reimbursing those who did, according to several sources, including a member of O'Donnell's legal team.
O'Donnell, 61, has indicated that he is willing to plead to a misdemeanor charge and pay a large fine, but prosecutors in the U.S. attorney's office in Los Angeles have been insisting that any deal would require him to plead guilty to a felony, which would end his legal career in California, according to several sources who asked not to be named because of the sensitivity of ongoing negotiations.
Members of O'Donnell's legal team are questioning whether the veteran Democratic attorney is being threatened with a felony because he represents victims of Hurricane Katrina in a lawsuit against the government and has been openly critical of President Bush's policies on civil rights in the wake of the 9/11 attacks, a source close to O'Donnell said.
Thom Mrozek, a spokesman for U.S. Atty. Thomas P. O'Brien, declined to comment on O'Donnell's case in particular, but said, "This office never considers politics when conducting investigations and determining when charges are appropriate."
To support the notion that O'Donnell is being singled out , his lawyers have presented prosecutors with nearly two dozen illegal campaign contribution cases that they say were handled administratively by the Federal Elections Commission, even though most involved larger amounts of money and more egregious conduct than is alleged in O'Donnell's case.
One of his lawyers also questioned whether O'Brien was seeking to make an example of O'Donnell "to blunt criticism" of a controversial decision O'Brien made earlier this year to disband his office's public corruption unit.
"There are very legitimate questions as to how one can justify imposing a professional death penalty over this type of conduct," said George Terwilliger III, a high-powered Republican attorney who served as the No. 2 official in George H.W. Bush's Justice Department and played a key role on George W. Bush's legal team during the Florida election recount.
O'Donnell's attorneys are not the first to raise questions about politically motivated prosecutions by the Justice Department under George W. Bush.
Lawyers across the country began making such arguments after then-Atty. Gen. Alberto R. Gonzales was accused of terminating eight U.S. attorneys on political grounds in 2006. Such claims are hard to prove and have had mixed results.
Federal prosecutors are investigating whether O'Donnell asked employees of his former law firm and their families to contribute money to Edwards' campaign and then reimbursed them for making the donations.
In 2006, O'Donnell pleaded no contest to state charges for similar conduct in the 2001 mayoral race of James K. Hahn. As a result of the misdemeanor conviction, he was sentenced to probation and ordered to pay more than $155,000 in fines and penalties.
The current investigation involves $28,000 in contributions to Edwards that were made before O'Donnell learned that he was under scrutiny for the Hahn donations. Prosecutors have called at least one witness before the grand jury, O'Donnell's secretary, Delores Valdez, according to a source who asked not to be named because of secrecy rules governing grand jury investigations. The source said Valdez was granted immunity.
According to sources close to O'Donnell, the lawyer has told prosecutors that he would be willing to admit to arranging for the contributions and reimbursing his employees if he was allowed to plead guilty to a misdemeanor, which would allow him to retain his law license.
In their bid to persuade prosecutors that filing a felony would be unfair, they have identified 21 cases since 2000 in which people or businesses accused of similar or worse offenses were fined by the Federal Elections Commission as opposed to being prosecuted. In some of those cases, the defendants tried to conceal their conduct by making cash reimbursements or disguising the payments as phony bonuses, salary increases or reimbursement for legitimate work-related expenses.
O'Donnell wrote personal checks to his employees to reimburse them and turned over all of his records to the government when he learned he was under investigation, a source close to the lawyer said.