Dark Money

by Larry D. Thompson

  After he took the oath and settled into the witness stand, Jack said, “Tell us a little about yourself.”

  Cagle smiled as he turned to the jury. “Good afternoon, ladies and gentlemen.”

  “Good afternoon,” several replied, taking an instant liking to the witness.

  “You heard my name. Never much cared for Calvin as a first name, but I wasn’t given a vote.”

  Most of the jurors smiled.

  “I’m a professor out at TCU. I have a PhD, but I don’t really like to be called doctor. Cal suits me just fine. I teach political science. Been doing so for twenty plus years.”

  “Professor,” Jack asked, “have you written any books about politics?”

  Cagle nodded. “Last time I counted it was twenty-two. Plus a bunch of journal articles. I also appear on national news programs when there’s some political event that might be worth my two cents.”

  “Sir, you’re familiar with 501(c)(4) organizations, are you not?”

  Cagle sighed. “I’m sorry to say I am. After what the Supreme Court did to us in the name of free speech, I worry about the damn things every day.”

  Christiansen rose. “Objection, Your Honor. Non-responsive.”

  “Sustained. Professor, please just answer the question with no editorial comment.”

  Cagle shrugged his shoulders as he looked at the jury. “Sorry, Your Honor. My opinions occasionally just slip out, particularly when they are strongly held.”

  “Professor, I asked you to study the contributions of the Stepper PAC and SOS, the ones that have been provided to us by Mr. O’Connell’s lawyer. Have you done so?”

  “I have.”

  “Have you formulated opinions as to the percentage of expenditures from SOS that went to social welfare organizations?”

  “Wait a minute, Your Honor,” Christiansen almost shouted. “There’s nothing in the designation of this witness about any such opinions.”

  “Not so, Judge. In the designation, I wrote, and I quote, ‘opinions about the status of Mr. O’Connell’s various organizations.’ If Mr. Christiansen wanted more detail, all he had to do was ask.”

  “Mr. Christiansen,” Judge Jamison ruled, “I agree that is global and very skimpy. Still, I’m going to let the testimony in. Proceed, Mr. Bryant.”

  Christiansen bent over to whisper something to his associate who had the laptop, then turned and walked to the rail where he leaned against it as he listened.

  “Can I answer, Judge?” Cagle asked.

  Jamison nodded.

  “Pardon me. Mr. Bryant, can you hand me my briefcase?”

  J.D took it from their table and handed it to him. Cagle opened two buckles and extracted a large file, overflowing with papers. He turned to look at the jury.

  “Don’t worry, I’m not going to read all of this stuff to you. I have a summary on top, but wanted to have my backup data in case one of these smart lawyers wants to challenge any of my opinions.” The way he said it, the jurors could tell that he was eager to be challenged by the plaintiff lawyer. “Now, here’s my summary, just three pages. First, I took a hard look at what is called SOS. It’s supposed to be a 501(c)(4) social welfare organization. That means that fifty-one percent of its money has to be spent on social welfare issues. Now, the first part is easy. Forty-nine percent over the past election cycle and up to now has gone straight to the Stepper PAC.”

  “Is that okay?” Jack asked, primarily just to break up Cagle’s lecture.

  “I don’t like it, but it’s all right, according to various federal regulations and the United States Supreme Court.” He grimaced when he said the name of the court.

  Christiansen started to object but decided to let it go.

  “What about that other fifty-one percent?”

  “That gets interesting. Most of the money is spent on ads about guns, the environment, immigration, fracking, the Keystone pipeline, nearly any hot button political issue you can think of. Are they issues important to our society? Of course. The problem is that the commercials take, in the case of SOS, a decidedly conservative, Republican view of the issue and then take shots at some liberal or Democratic politician. You know, ‘Tell Governor so-and-so” to vote for the right to carry or against more environmental regulation. Oh, there may be a little money spent by SOS, supporting Boy Scouts or the Audubon Society, but that’s a very small percentage. Now, I don’t mean to be just taking shots at conservatives and Republicans. The Democrats do the same things.”

  Jack saw that the jurors found this all very interesting. He spoke softly. “In your opinion, are these ads and commercials supporting social welfare?”

  “Objection, objection, Your Honor,” Christiansen said as he saw that O’Connell was turning red with anger. “He’s not the one to decide if a campaign is for social welfare or not.”

  Jamison looked at Jack for a reply. “He certainly is, Your Honor. I’ve qualified him as an expert. We’ve researched the issue, and it is not currently defined by the courts nor the IRS. We’ve got to start somewhere. Might as well be here.”

  “Mr. Christiansen, your objection is noted. Professor Cagle may continue.”

  Cagle had turned to face the judge. With her last pronouncement, he faced the jury as if he were lecturing to a freshman class in political science. “You see, that’s the problem. No one has defined what a social welfare organization is. The Federal Election Commission is composed of three Republicans and three Democrats. They are gridlocked. Can’t even agree on what time to start their meetings. The designation 501(c)(4) is an IRS regulation, but they have had a hundred years to define it and haven’t done so. The Supreme Court actually took a shot at it back in the seventies and then reversed itself in McConnell v. FEC in 2003. The IRS is not about to incur the wrath of Congress. Our good Senators and Representatives like all that money rolling in. So, I’ll be the one to go on record that most of these kinds of organizations are not qualified as social welfare organizations under the Internal Revenue Code. That definitely goes for SOS. In addition to that forty-nine percent that admittedly goes to Stepper, of the remaining fifty-one percent, all but two or three percent go to promote politicians or political causes, absolutely not social welfare issues. In short, there’s no way it’s an organization formed to promote social welfare. And if it is not qualified, then it can’t hide its contributors. After all, ladies and gentlemen, don’t you want to know who is spending the billions of dollars to elect your officials?”

  Christiansen shook his head. “Objection to the last comment, Your Honor.”

  “Sustained. It will be stricken from the record and the jury will disregard it.”

  Jack smiled, knowing that the objection and the judge’s ruling would only go to reinforce Cagle’s comment.

  Jack bent over to whisper to Colby who nodded. “No further questions, Judge.”

  Christiansen stood at the back against the rail with his arms folded while he thought. Finally he said, “Judge, this line of questions and answers is so clearly improper that I am not going to dignify it with cross-examination.”

  The judge stared at the plaintiff lawyer. “Mr. Christiansen and Mr. Bryant, please approach the bench.” The lawyers moved to the side of the bench away from the jury. “Mr. Christiansen, that last comment put you very close to contempt. I will not tolerate your questioning my rulings in front of the jury. Do I make myself clear?” she said. “Now, I’m going to strike your sidebar comment and accept your decision to forego cross-examination of this witness. The witness may be excused. And one more thing, Mr. Christiansen, consider yourself warned.” She turned to face the jury. “As I told you at the first of trial. I have to deal with other lawyers fighting about discovery and motions on other cases on Fridays; so, you are dismissed for the weekend. Remember not to discuss the case or read or watch anything in the media about it.”

  Jack stood. “Your Honor, after the jury is gone, I have a motion.”

  Jamison nodded as Ernie escorted the jury out. When th
ey were gone, she said, “Let’s take fifteen, and then I’ll hear what Mr. Bryant has on his mind.”

  O’Connell practically dragged Christiansen back to their conference room.

  “Dammit, Cecil, I see what is about to happen. He’s going to ask the judge to order me to produce my list of SOS contributors and their amounts. You have to stop it,” he almost shouted, pushing his index finger into his lawyer’s chest.

  “Keep your voice down and get your damn hands off me. First question is can you produce that kind of data?”

  “Of course. We just have to hit a few keys on the computer.”

  Christiansen thought. “Okay. I’m not going to say that. I’m going to say that you will need a few days. That’ll give me a chance to get a ruling from the court of appeals early next week. I just pissed the judge off, and I don’t expect any rulings in our favor when we reconvene. If we can get it to the court of appeals, we’ll be okay.”

  71

  The lawyers reassembled in the courtroom just before the judge opened the door to her chambers. They rose. “Keep your seats. The jury’s gone. However we are still on the record, and I see the media is still in attendance. Mr. Bryant, what’s on your mind?”

  Jack moved to the podium. “Your Honor, early in the development of this case, you ruled we could get the names and information on contributions to SOS. The court of appeals reversed that decision. Now, I re-urge that motion. We have established through Professor Cagle that SOS is a welfare organization in name only. Based on the only proof before you, it’s clear that the SOS money is being spent to promote political candidates and causes with maybe a small percentage actually going to social welfare. I can tell you that there is currently no appellate case on this issue and no IRS ruling or regulation since the politicians seized on 501(c)(4) as a means to hide donors. We’ve got to start somewhere. It might as well be here. We request that the court order Mr. O’Connell to provide the names of persons and organizations that have contributed to SOS or have pledged to do so. That information certainly must be readily accessible on a computer. So, we further request that the order be for no later than ten a.m. tomorrow. That will give us sufficient time to analyze the information over the weekend.”

  O’Connell looked as if he might have a stroke as Christiansen rose. “Judge, first, let me apologize for my comments before we dismissed the jury. I was completely out of order.”

  “Apology accepted. Move on.”

  “Judge, what Mr. Bryant is asking for will set the political system in this country on its ear. There is no precedent for what Mr. Bryant asks. It’s a Pandora’s box that once opened will cause havoc for both Republicans and Democrats.”

  “Mr. Christiansen, I told you during the discovery hearing that I saw nothing wrong with transparency in political contributions. You can call SOS a social welfare outfit, but the only testimony I have before me contradicts that conclusion.”

  “Judge, there’s another issue. You said this had to be produced by ten tomorrow.” Christiansen chose his words carefully. “I don’t believe we can get that volume of information together before Monday at the earliest.”

  The judge stood and fixed her eyes on the plaintiff lawyer. “Mr. Christiansen, I understand computers. I also understand that you would like to get this to the court of appeals where you would seek another reversal of my ruling. You can take your best shot, but my order stands. Ten tomorrow morning. By the way, if you want a record of these proceedings for the appellate court, my reporter will be tied up with me on my motion docket, probably until about mid-afternoon tomorrow. And, Mr. Bryant, I’m entering a confidentiality order on whatever Mr. Christiansen produces. That will remain in effect until we re-convene on Monday and we can evaluate the relevance of what is produced. That’s all. I’ll see you on Monday.”

  Christiansen and his entourage along with his clients packed and moved from the courtroom to their conference room. Hartley Hampton pushed his way past the phalanx of reporters and through the swinging gate. He approached Jack. “Shit, man, do you know what you just did? It’ll be on the front pages of every newspaper in the country tomorrow.”

  Jack nodded while he and Walt packed their trial materials to haul them back home for the weekend. “We’ll see. I don’t think that Cecil will risk a contempt order. And he really can’t get to the court of appeals without a record of today’s proceedings.”

  “I presume the contribution information will be on a disc or a flash drive. Where will it be delivered?”

  “My office is on North Main. You know that. I plan to get there by about nine-thirty tomorrow. You’re welcome to join us, if you like, only I can’t let you see the information. You heard the judge.”

  “Wouldn’t miss it. Wow, what a story. I’ve said it before. I just ought to spend all my time hanging around you. I might win a Pulitzer.”

  Jack turned to the members of the detail who had been standing quietly. “You guys can head back to your hotel. I’ll call if I need you. I sent J.D. off on a project. Walt and I will do some strategizing tonight and will let you know if we need anything.”

  When O’Connell got to the privacy of his car, he placed a call. The voice that answered spoke English but with a decidedly Eastern European accent. “It was understood that we would not communicate until after this trial.”

  “Something has come up,” O’Connell said. He explained the problem.

  The man responded very firmly. “You promised that if my organization contributed a hundred million to SOS, it would be absolutely secret. You also guaranteed discrete access to the White House once your candidate won. Are you going back on your promise? If so, we have long memories. It could be very bad for you and your family.”

  O’Connell tried to calm the panic in his voice. “No, no. Certainly not. My lawyer is ordered to send a flash drive to the defense lawyer, that one who offices in an RV on North Main. It will have the names of all of the contributors to SOS, including your organization.”

  “I know that RV. We have watched it off and on since this lawsuit began. We will deal with this problem. However, let me make it very clear, if another issue such as this occurs, we will conclude that you are the problem. Understood?”

  72

  J.D. climbed into his new pickup, a Toyota Tundra quad cab, with an emblem designating it as a “1794 Edition” on the side. As he drove away from the courthouse, he admired his new truck. The cab was big enough for even him, and the interior looked like it belonged in a Mercedes. Maybe he and his dad could negotiate an endorsement deal. After all, J.J. Watt with the Texans was paid to drive a Ford F-150.

  Using the hands free feature, he called Ike. “You got anything pressing going on this afternoon?”

  Ike smiled at the thought. “Nothing that won’t wait. What do you need?”

  “I’m on my way to your house. Pack an overnight bag. We’re catching the next flight to New Orleans. I’ll explain more when I get there.”

  It was nearly eight when they landed in New Orleans. After renting a car, they drove to the Marriott where J.D. had reserved three rooms, expecting to need one for Bernard before the night was over. After dinner at the hotel, they walked to Trombone’s, arriving just as the ten o’clock set was nearly over. They chose a table in the front row and ordered two Bud Lights and listened to the last of the set. When it ended, Bernard spotted them. A frown appeared on his face.

  He put his cornet down and walked to their table. “Look, Ike, I done told you I ain’t doing anything more to help. What don’t you understand about that?”

  Ike pointed to an empty chair. “Have a seat. We’ll talk a minute and then we’ll enjoy your music until the place closes. You told me about how you paid your cell phone bill. If you can get online, we want to check a couple of numbers from early September last fall. You know your log-in and password?”

  Bernard raised his hands in protest. “Why should I be helping you?”

  “Damn you have a short memory,” Ike said. “You already forgo
t about that fifty grand you got from Cross. You just have to play ball a little longer and we’ll be out of your hair.”

  “That log-in shit is stuck to the wall back at my apartment.”

  “That’s okay,” J.D. said. “While Ike stays here, I’ll go back to the Marriott and retrieve my rent car. We can visit your apartment as soon as you’re off work.”

  Bernard shook his head in disgust when he walked back to the stage. J.D. left the club, remembering what had happened on these streets before and watched as he passed every entry and alley. On this night his vigilance was unnecessary. While he was gone, Al walked over to visit with Ike. Ike declined his invitation to join them on stage.

  It was an hour before he returned to Trombone’s. He sat down beside Ike and refused another beer. When the set was finished, Bernard put his cornet in its case and shuffled over to their table. “Okay, let’s get this done.”

  “One more thing,” Ike said. “You better let Al know you may be gone a few days.”

  “That wasn’t part of the deal,” Bernard shot back.

  “We’ll pay for any money you lose. We may need you in Fort Worth,” J.D. said.

  “You can sleep on my couch. We can do a little jamming in my studio. You’ll like it,” Ike added.

  Bernard returned to the stage where he talked to Al and pointed to J.D. and Ike. Al nodded. When they strapped themselves into the rent car, Bernard directed them out of the Quarter and across I-10 to an apartment close to the Fairgrounds Racetrack. Bernard occupied a one bedroom in a sixteen unit complex, probably built in the sixties or seventies. He unlocked the downstairs unit and flipped on an overhead light. J.D. was surprised to find that it was neat, clean and tastefully done. Bernard placed his horn on the small kitchen table and went to the back where he returned with his laptop and a yellow sticky with writing on it. Sitting at the table he clicked on the computer and typed in his password. A browser appeared. He looked at the writing and went to the site where they hoped to find his cell records. Once there he looked at the writing again and typed in a user name and password. When his cell records appeared, he motioned J.D. and Ike to stand behind him as he scrolled back by the months to September.