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November 28, 2014

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Jon Ralston:

Arberry case reinforces double standards

The state of Nevada has sanctioned killing black bears, but Moose hunting is still banned.

Yes, whip out your crossbows, train them on lumbering animals guilty of nothing and shoot to kill. But if you are an elusive political animal who takes campaign money, does not disclose it and puts the cash in his personal account, have no fear: You’re safe from harm.

Attorney General Catherine Cortez Masto has used her own conversion scheme — transforming six felony charges into a misdemeanor — to penalize another — ex-Assemblyman Morse “Moose” Arberry’s turning $121,000 in campaign funds he never reported into personal cash.

In so doing, Cortez Masto has made Arberry’s attorney, George Kelesis, an early nominee for Lawyer of the Decade, has let the ex-lawmaker off with a wrist massage for his depredations and has sent a message to all elected officials that they need not worry if they decide to commit copycat crimes.

There are legal nuances here — I’ll get to them. But this is not in dispute: A lawmaker with a quarter-century of experience did not report, as is required by statute, $121,000 in campaign contributions and then deposited the money in a personal account.

That, under the standard set by the attorney general, is not a felony; it is a misdemeanor.

This is as close to a slam-dunk, open-and-shut, choose-your-cliché case as you can get, folks. They had bank records detailing the deposits. They have the contribution forms showing the checks were not disclosed. And, on those same forms, they have Arberry’s signature beneath where it states, “I declare under penalty of perjury ....”

Cortez Masto essentially said on “Face to Face” on Friday that she was handcuffed in the case, which is why Arberry is not wearing them. The attorney general emphasized the criminal conviction, mild though it is, as an irremovable blot on Arberry’s record. Cortez Masto argued — echoing what Kelesis said the previous evening — that because the campaign finance statutes do not provide for criminal penalties, they “were legally limited.”

She bizarrely added that the defense “brought to our attention that ... the exclusive remedy is civil ... then we did our research and found in 1997, the Legislature amended out the criminal penalties.”

True enough. But they didn’t know that going in? Shouldn’t they have?

The attorney general did not charge Arberry civilly — as she could have — for misusing campaign funds. Obviously believing the crime was much more serious, she chose — chose! — to charge him criminally with perjury and fraud for filing those false documents.

On “Face to Face” last week, Kelesis didn’t even try to argue that Arberry did not know the law he had supported as a lawmaker. “I’m not suggesting that,” he said. “What I’m suggesting is .... felonies don’t apply.”

Kelesis argued that analogous cases had been handled civilly, mentioning Janet Moncrief, a rookie Las Vegas city councilwoman who agreed to pay a fine after being accused of not reporting certain expenses on her disclosure forms. Her lawyer, Rick Wright, argued, as Kelesis did, that a previous case, that of former Assemblyman Chad Christensen, had also been handled with a civil fine.

I won’t waste time making the argument that what Arberry did was much more egregious — neither Moncrief nor Christensen were accused of taking campaign cash and converting it to a personal bank account. But the argument that Arberry should not have been charged criminally because others have not been reminds me of politicians who, when caught, argue the “everybody does it” defense.

As one Democrat — yes, Democrat — said of the Arberry deal made for a Democrat by a Democrat: “Horrific. Embarrassing for all of us.”

The perception is even worse for an attorney general who indicted a GOP lieutenant governor (Brian Krolicki) for financial mismanagement but never alleged he enriched himself — as Arberry did — before the case fell apart. Many will argue Cortez Masto was willing to go to the wall for a lesser offense against a Republican while letting an outrageous crime by a Democrat go virtually unpunished. (Arberry, claiming destitution, has a $100-a-month restitution requirement, which means he has to pay it off before his 175th birthday.)

Secretary of State Ross Miller, who brought what he called a strong case, could only say of the attorney general’s office: “It’s their responsibility for evaluating the case, prosecuting it and cutting plea deals where appropriate.” If ever the phrase “carefully chosen words” were appropriate, Miller’s statement fits. You can visualize him writing it with one hand and using the other one to scrawl: “I will not criticize the attorney general. I will not criticize the attorney general.”

The message here is atrocious: Different standards for politicians, different standards for Democrats, different standards for Nevada.

In this state, we hunt innocent bears and kill them. Manifestly guilty political animals? We set them free.

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