The indictment against Sedgwick County Commissioner Michael O’Donnell smells of overcriminalization.
Former Wichita City Council Member, former Kansas Senator, and present Sedgwick County Commissioner Michael O’Donnell has been charged with a series of serious crimes — serious, at least, in the potential penalties he faces.
First, I know Michael O’Donnell, and although I have been critical of some of his votes in the Kansas Senate and many while a member of the Sedgwick County Commission, I still consider him a friend, and I hope he considers me the same. I have worked on some of his campaigns, sometimes as a volunteer, and sometimes for pay.
In the indictment, counts one through five accuse O’Donnell of wire fraud, because five campaign finance reports filed with the Kansas Governmental Ethics Commission contained allegedly false and fraudulent information, that being that O’Donnell allegedly converted campaign funds to his personal use. And, the email service used to file the reports routed the data through other states on its way to Topeka. This is described as a scheme to “defraud the State of Kansas, the County of Sedgwick, Kansas, and the citizens thereof.” 1
Counts six through ten accuse O’Donnell of bank fraud, because the banks involved are insured by the Federal Deposit Insurance Corporation.
Counts eleven and twelve allege money laundering based on the above activity.
O’Donnell is being charged with multiple criminal offenses for the same acts. He allegedly converted campaign funds to personal use. That is against the law, and if done more than once, there can be multiple counts. But how this is done (the means of transmission of reports to KGEC) and what type of banks were used (FDIC insured banks) really don’t have anything to do with the underlying bad acts and should not result in additional crimes, at least in this case.
For example, if O’Donnell had used an internet service that sent email with the transmission remaining at all times within the borders of Kansas, then one of the elements of the first five counts would not apply, that he “transmitted by means of wire communications in interstate commerce.” Or, if he had delivered the reports personally, interstate commerce might not apply.
This is the issue of criminal intent. If the allegations in the indictment are true, O’Donnell committed a crime by improperly spending campaign funds and falsely reporting that. The indictment presents evidence of criminal intent in doing these things. But it is unlikely he intended to commit a crime involving interstate commerce. He probably did not know that Google would route his Gmail communications across state lines.
In a similar vein, because the banks involved are insured by the Federal Deposit Insurance Corporation, counts six through ten accuse O’Donnell of bank fraud. But it’s unlikely O’Donnell intended to defraud the banks. The checks he wrote didn’t bounce; there were sufficient funds in the accounts. So it’s very difficult to see how the transactions alleged in the indictment posed any threat to the banks, or by extension, to the federal government through FDIC insurance. Further, if O’Donnell had used state-chartered banks, the second five counts might not apply.
If we want to have campaign finance laws, that’s one thing. If people violate those laws, then charge them with that. But this piling on of charges is a characteristic of overcriminalization, where people are charged with multiple crimes for the same underlying criminal act.
Could the piling on of charges be a bargaining chip to use in future negotiations concerning things O’Donnell may know? In a recent op-ed, prominent attorney Alan Dershowitz quoted a federal judge regarding squeezing a potential witness: “This vernacular is to ‘sing,’ is what prosecutors use. What you got to be careful of is, they may not only sing, they may compose.” 2
I have been using this “compose” metaphor for decades and I am gratified that a judge borrowed it to express an important civil liberties concern. Every experienced criminal lawyer has seen this phenomenon at work. I have seen it used by prosecutors who threaten wives, parents, siblings and, in one case, the innocent son of a potential witness who was about to graduate law school. Most judges, many of whom were former prosecutors, have also seen it. But few have the courage to expose it publicly, as Ellis has done.
Defenders of Mueller’s tactic argue that the threatened witnesses and their relatives are generally guilty of some crime, or else they wouldn’t be vulnerable to the prosecutor’s threats. This may be true, but the crimes they are threatened to be charged with are often highly technical, elastic charges that are brought only as leverage. They are dropped as soon as the witness cooperates.
Is this what is happening to Michael O’Donnell? Will the piling on of multiple felony charges carrying multi-year prison terms be dropped if O’Donnell cooperates in criminal prosecutions against other people?
If anything, these alleged acts might constitute fraud committed against campaign donors. It’s difficult to see how the average person would care how candidates spend their campaign funds. Citizens may be concerned with who gives and how much they give, and if a candidate converts these campaign contributions to personal use, it opens the door to corruption. But the people really harmed are the donors who gave funds expecting to help O’Donnell win an election, not pay his personal expenses. (Unless the donors gave with such an understanding in place, and that is not legal.)
As an aside, O’Donnell’s political opponents ought not to be so concerned, although currently they are overjoyed at his situation. If a candidate converts funds to personal use — away from campaign activity like advertisements, mailings, and yard signs — that seems to make the candidate less likely to win. Candidates and their supporters should hope their opponents spend campaign funds unwisely.
- United States Attorney’s office for the District of Kansas. Federal Fraud Charges Filed Against County Commissioner O’Donnell. Available at https://www.justice.gov/usao-ks/pr/federal-fraud-charges-filed-against-county-commissioner-o-donnell. Also see the indictment, available here. ↩
- Alan Dershowitz. Federal judge rightly rebukes Mueller for questionable tactics. The Hill, May 7, 2018. Available at http://thehill.com/opinion/judiciary/386508-federal-judge-rightly-rebukes-mueller-for-questionable-tactics. ↩