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McVeigh prosecutor on Tony Bennett's legal team in ethics case

Tony Bennett

INDIANAPOLIS – Former Indiana Schools Superintendent Tony Bennett has hired a pair of top criminal defense attorneys to fight charges that he misused state resources to campaign for office – including the lawyer who helped write some of the ethics laws Bennett is accused of violating.

Larry Mackey and Jason Barclay, lawyers with the Indianapolis powerhouse firm Barnes and Thornburg, are representing Bennett before the State Ethics Commission. Barclay helped draft an overhaul of state ethics laws in 2005 while working as a lawyer for former Gov. Mitch Daniels. And Mackey built a national profile prosecuting Oklahoma City bomber Timothy McVeigh before taking over the white-collar defense arm of Barnes and Thornburg.

The ethics commission not only could banish Bennett from future state work in Indiana but also could refer the case to Marion County Prosecutor Terry Curry for a criminal investigation. Tasking state employees with doing political work, dubbed “ghost employment” is a minor felony punishable by up to three years in prison.

Having powerhouse lawyers on his side could help reduce any punishment against Bennett, said David Orentlicher, co-director of the Hall Center for Law and Health at Indiana University’s McKinney School of Law. Barclay in particular could be valuable, he said, because he helped craft the 2005 ethics legislation that, among many other things, established the position of inspector general and rewrote parts of the code Bennett is alleged to have broken.

Mackey defended politically connected developer John Bales against federal charges that he defrauded the state in a leasing scheme. A federal jury found Bales not guilty on all 13 counts last February.

But the team could have trouble defending against the actual charges Bennett faces because his violations seem clear, said Orentlicher, a former Democratic state representative who served from 2002-2008.

“It’s hard to see it in this case. If it’s really true he did use state resources and staff for political purposes, that’s a pretty bright line,” he said.

A hearing originally scheduled for Wednesday has been delayed until May at the request of Bennett’s legal team. Barclay noted that Inspector General David Thomas’s office had yet to share the evidence outlined in a four-page probable cause affidavit it filed.

“We don’t know a lot yet because we’re still waiting on discovery from the inspector general. So one of the things he is obligated to do is turn over documents related to the investigation and that production is still incomplete,” Barclay said. “We obviously are still in the fact gathering stage and trying to understand what was the basis for these charges.”

Thomas’ office declined Wednesday to release the probable cause affidavit, citing state law that keeps such records confidential.

Thomas charged Bennett with misusing state resources in his failed 2012 re-election bid by using state equipment to schedule campaign activities and raise funds. The Associated Press reported in September that Republican Party fundraising lists were discovered on state computers. Emails obtained by the AP through a public records request also showed Bennett directing his staff to conduct political work.

Cam Savage, a former Bennett communications director and consultant on the 2012 campaign, argued at the time that one list dubbed the Republican “Red Meat” list was only a list of elected officials for Bennett to reach out to in his official capacity. The list, however, gathered contacts for thousands of party activists and low-level donors.

Another fundraising spreadsheet, dubbed the “Big Hitter List,” included tips on how to cultivate top-tier donors. The first name on the list was Christel DeHaan, the founder of a charter school at the heart of a grade-changing scandal reported by the AP that ultimately led to Bennett’s resignation in August as Florida’s schools chief.

The emails obtained by the AP also show Bennett and his staff conducting campaign work through state email and on state time, a likely violation of the state’s “ghost employment” law. Heather Neal, Bennett’s former chief of staff, discussed campaign fundraising tallies in one message and was included in weekly fundraising phone calls.

Bennett has said he was not campaigning from his Statehouse office and denies any wrongdoing. Emails seeking comment sent to Bennett and Savage weren’t returned.

Neal left work as Gov. Mike Pence’s chief lobbyist last August amid the grade-change scandal and took a job with Savage’s campaign firm.

Bennett’s resignation in Florida and the subsequent ethics charges represent a steep fall for a national education reform star once mentioned as a potential education secretary in a future Republican White House. Bennett has since taken a job with student testing giant ACT, which is crafting a test to sell to states that have adopted the national Common Core education standards.

The Bennett case is the highest profile issue the ethics commission has taken on in recent years. Barclay said the only other prominent case he can recall is that of Scott Storms, a former Indiana Utility Regulatory Commission lawyer who had negotiated a job with Duke Energy while overseeing regulation of Duke’s proposed Edwardsport plant.

Barclay would not discuss how much they are charging Bennett, but Orentlicher said talent like Mackey and Barclay could possibly run more than $500 per hour.

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