HOW DANA NESSEL CAN KO GIFTS OVER $76 FROM LOBBYISTS TO LAWMAKERS — IF SHE REALLY WANTS TO
Should the titans of the Michigan Oil & Gas Industry be quaking in their boots because Michigan Attorney General Dana Nessel is suing them for their responsibility in fomenting climate change?
Almost certainly not. Nessel’s track record as A.G. is “Heap Big Smoke, No Fire” — at least in terms of bringing charges or actually winning in the court room. Her record is abysmal, starting with her five-year campaign to vilify former Republican Gov. Rick Snyder and his administration for what she claimed was their role in creating the Flint “Water Crisis.” Nessel and her appointed prosecutors botched the job when all their arguments were thrown out by every relevant judge, including the Michigan Supreme Court, which a majority of her fellow Democrats control.
She hasn’t done any better on any other litigation that could become ‘defining’ if she has hopes of being perceived as a success as the state’s chief law enforcement officer. She has no ‘signature’ issue on which she has actually won her case and proved that her prosecutorial prowess has been a game-changer. She hasn’t even done very well at plucking off the low-hanging fruit that she could have eagerly seized and made a big difference on.
For example, Nessel blinked when she had the opportunity to bring felony charges against former Senate Majority Leader Mike Shirkey (R-Clarklake). She had evidence collected by her own investigators who documented that Shirkey had personally solicited many corporation and association representatives — in person, in meetings, over the phone, and by email — urging them to funnel funds through two 501 C 4 organizations to Unlock Michigan. These 501 C 4s then passed on $2.4 million in 2020 to Unlock Michigan. which was a ballot question committee formed to use the initiative petition process to repeal the 1945 gubernatorial Emergency Powers Act amid the 2020 Covid-19 pandemic.
In the end, Nessel let Shirkey off the hook. Instead. she only brought felony charges against a pair of female political fundraisers for the two 501 C 4 organizations. Nessel claims they committed perjury and filed a false affidavit (uttering and publishing).
Nessel could have charged Shirkey and many of the contributors to the two 501 C 4 organizations with conspiracy. Conspiracy is defined as when two or more persons join and form an agreement to violate the law, then act on it.
Had conspiracy charges been brought, the culture of dark money in Michigan politics would have been significantly altered. Future solicitation of ‘dark money’ for ballot question campaigns would have been treated as radioactive by prospective donors.
Both Secretary of State Jocelyn Benson and Nessel are halfway through their second and final terms in office under term limits. Elected as agents of political reform, both appear, after nearly six years in office, to be reluctant to throw a knockout punch against campaign finance and lobby law violators.
Metaphorically, Nessel and Benson could be boxers (yes, women box, as proved by Flint’s Claressa Shields, who is the current women’s world middleweight champion and a two-time Olympic gold medalist). Unlike Shields, Nessel and Benson have avoided seeking a knockout against violators. Instead, they appear content to throw jabs and circle around the ring bobbing and weaving, racking up “style” points.
Both Nessel and Benson rail against the Michigan Campaign Finance Act (MCFA), claiming it is feckless and binds their hands.
Yes, Nessel brought felony charges against two fundraisers in Benson’s ‘dark money’ referral, but it was not not under the MCFA. Rather, it was under the 1931 Michigan Penal Code for “perjury” and “uttering and publishing” (filing a false affidavit). Misdemeanor charges were also brought for failure to register the two 501 C 4 organizations as ballot question committees and disclose the identities of their contributors.
Let’s state it plainly — both Benson and Nessel could cement their ‘reform’ legacy by aggressively going after lobbyists, who have been reported in a series of Detroit News articles as flouting the lobby law by providing numerous lawmakers with event tickets (professional and college sports, concerts, theater performances, and golf fees) whose face value exceed the $76 gift limit.
Several multi-client lobbyists maintain they are permitted to do this, because after providing a lawmaker with tickets they allegedly send a letter to the lawmaker asking the public official to ‘reimburse’ the lobbyist for the difference between the $76 gift limit and the actual ticket price.
Does the reimbursement letter make this gift legal? Has the Secretary of State ever issued a ruling saying this reimbursement strategy avoids a violation of the gift limits found in the Michigan Lobby Law? No.
As it happens, the Secretary of State HAS received a request from retired attorney Bob LaBrant, the state’s resident expert on campaign finance, asking precisely that question. Sixty business days from now, in late July or early August, we may learn the answer from Benson’s department.
LaBrant’s ruling request enumerates an Attorney General opinion, a Michigan Court of Appeals case, and a Michigan Supreme Court decision, all of which found that reimbursement, even paid in advance, does not cure an underlying violation of the MCFA. LaBrant contends that those rulings should give the Department direction in responding to his request for a ruling on gift limits under the lobby law.
LaBrant argues that the lobbyist theory of reimbursement curing a violation of the gift limit is not convincing. Why enact a gift limit in the lobby law at all if those limits can be so easily overcome?
LaBrant says a better analysis by the Secretary of State would view this request as a contract. Can a lobbyist and a public official verbally agree to have a public official receive tickets valued over the gift limit that will be later reimbursed to the lobbyist for the amount over the gift limit?
Put another way, may the two parties’ contract to do an illegal act? No. Case law suggests contracts that “violate public policy” would be void and unenforceable.
Michigan lobbyists ought to be concerned if Attorney General Nessel, in response to a lobby law complaint, turns to another provision in the Michigan Penal Code which suggests that such an agreement between a lobbyist and a public official violates MCL 750.157a. That section of the law says that:
‘Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy …”
Conspiracy is a five-year felony. The constitutionality of this provision was upheld 7-0 by the Michigan Supreme Court in an opinion written by Justice Joan Larsen (a Republican appointee later elected in her own right and later appointed to the federal bench by former President Donald Trump). Larsen’s opinion came in People v Seewald (2016), before she was named to the U.S. Sixth Circuit Court of Appeals. The case was against former aides to Congressmen Thad McCotter (R-Livonia) who forged candidate petition signatures whose invalidity kept McCotter off the re-election ballot in 2012, ending his political career.
A Benson ruling response to LaBrant HAS found that gifts over $76 are illegal, but that is only a start in changing the culture. Unfortunately, it does not mean that such a ruling will be universally adhered to or enforced.
Back in 2006, when LaBrant was employed with the Michigan Chamber of Commerce (as a vice-president and legal counsel), he teamed up with Rich Robinson, who was head honcho at the Michigan Campaign Finance Network. The two agreed, as a test of the system, to submit a joint request for a declaratory ruling on whether, as registered lobbyist agents, they could split the greens fee for a public official between them. That way, they could keep each one’s share under the gift limit.
The Secretary of State at that time (Republican Terri Lynn Land) ruled then that lobbyist agents could NOT split the greens fee of a public official between them to avoid the gift limit of the lobby law (01-06-LD).
Yet, even with that 2006 declaratory ruling, which is binding on the requestors and the Department of State and carries the force of law unless overturned, has been honored in the breach. During any given week, between late-April and mid-October, numerous lobbyists and lawmakers are out playing golf together on some of the state’s finest courses where the individual greens fee and cart rental far exceed the $76 gift limit.
A declaratory ruling does not necessarily translate into behavioral change. That requires vigorous enforcement by both the Secretary of State and the Attorney General to change the ‘Capitol culture,’ which for some lobbyists is a culture of skirting around the law, giving it a wink and a nod. For some public officials, it is a culture that they are somehow entitled to receive gifts from lobbyists regardless of their face value. It is a culture that does not adhere to the adage “Wrong is Wrong even if everybody is doing it.”
The Michigan Lobby Law enforcement process is not identical to the MCFA when investigating whether a violation of the lobby law has occurred.
Under the MCFA, the Secretary of State has no subpoena power. However, under the Michigan Lobby Law, the Department of State on its own volition can request from lobbyists the documentation behind any of their disclosure reports. The statute says the documentation “shall be” made available for inspection after reasonable notice (MCL 4.419). The Department of State has promulgated administrative rules on gifts (R 4.433). No rule permits reimbursement to cure gifts that exceed the law’s $76 gift limit.
Lobbyists are required to retain records for five years. The Secretary of State may investigate disclosure reports filed under the lobby law. During that records review, the Department of State could look to see if there is any reimbursement request letter. Was there any invoice sent by the lobbyist? Was there any receipt given to a public official paying reimbursement in the lobbyist records?
Following that investigation, it is the Secretary of State who determines probable cause that a violation of the lobby law occurred. The Secretary of State then forwards the results of that investigation to the Attorney General for enforcement of any civil or criminal penalty in the lobby law.
If there are sworn complaints from citizens or entities outside the Department of State that allege violations of the Michigan Lobby Law, they also must be filed with the Secretary of State. Those complaints are then forwarded to the Attorney General, who makes the determination, not the Secretary of State, whether there is probable cause that the lobby law has been violated before proceeding with any enforcement action.
Secretary Benson, through the declaratory ruling and interpretive statement process, can shape the interpretation of the lobby law. In the end, however, Attorney General Nessel has the sole responsibility to enforce the lobby law.
Will she ever do it?
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Nice analysis, Bill! BTW, if you aren’t on “Off the record”, I don’t care to watch. The Fourth Estate has devolved to be the Fifth Column, in my opinion. But, what do I know? Joseph Goebbels, the Nazi Propaganda Minister said, “Accuse the other side of what you are doing”. Election interference is exactly what the other side is doing with the trumped-up BS Kangaroo courts in multiple jurisdictions. The Ashley Biden diary is fact, according to the fact checkers. The fifty-some CIA people who said that the Hunter Biden laptop was Russian disinformation are liars. The Steele dossier has been proven to be BS. The bounty on American GIs was a lie. Trump saying that the American casualties on D-Day were suckers and losers was a lie. The testimony that described Trump trying to grab the steering wheel of his ride on January 6 was a lie. I could go on and on. I’m voting for the SOB on November Fifth. I donated $100.00, too. Keep up the good work, Bill! This will be the most interesting election that we have ever seen!
I found it an interesting coincidence that Election Day falls on Guy Fawkes Day this year.
Thank you for this article.
Dana Nessel’s performance as Michigan Attorney General has been spotty and politically driven.
Not only has she failed to obtained convictions in the Flint water case – due to legal bumbling by her staff in not understanding the grand jury laws in this jurisdiction – NO GRAND JURY WAS EVEN NEEDED AS SHE COULD HAVE PETITIONED A JUDGE FOR AN ARREST WARRANT.
Michigan Solicitor General Fadwa Hammoud resigned in February of this year following the Flint water prosecution debacle. One criminal defendant is now suing state officials over claimed civil rights violations – Hammoud is currently one of the named civil defendants in that case. She now is employed as a managing partner of a downtown Detroit office of Miller Johnson.
Why Mike Shirkey was never accused like others is unexplained and questions the competence of Nessel as the state’s chief law enforcement officer.
The “fake electors” case naming GOP heavyweights like Stanley Grot, Marian Sheridan and others is currently bogged down in 54A District Court in Lansing where it has languished for months in preliminary proceedings while defense attorneys question the legality of her office’s case.
Dana Nessel has been a disaster as Michigan Attorney General.
Agreed. Nessel has angered Democrats as much as Republicans with her antics.
She is damaging the chances of Democrats in 2026 of retaining control of the Attorney General position.
The failed Flint water prosecution was a kick in the teeth to the residents of that city who have suffered so much.
Hey Bill, thanks for the topic this week!
Well, given the current makeup of MI’s political and judicial offices, if I were of the conservative persuasion I’d not ASK for donations of any sort; and expect any donations, at all, without saying so (charades anyone?), to go to PACs. AG Nessel has plenty of time to make her mark. Observing, similar to Biden’s DOJ, they only need to score once, misses infinitum don’t count. This given that apparently the current legal playing field appears as,
1) Nessel/Benson, et al, can just throw accusations out willy-nilly to get partial credit, having their AG successors finish the prosecution in following terms. Nessel’s team doesn’t appear to be adept prosecutors anyway
2) Accusations are not sparse with this AG team: Snyder and 8 others, Chatfield and his wife, 16 so-called false electors, 9 kidnapping plotter conviction/pleads and 5 acquittals
3) Statutes of limitations don’t appear to be binding while Caesar, er Progressives, persecute, er prosecute, conservatives anyway
4) I suspect Shirkey taking himself off the playing board (smart move) reduced his target value significantly. Caesar, er, you know, is probably lying in wait for more meaningful game . . . like the next MIGOP congressional leaders, or their Senate candidate, once the smoke clears a little
5) Just biding their time, like an ambush predator
Keep up the good work Bill
Nice article, Bill.
In answer to your last question, NO! What we are seeing is lawfare, and weaponizing the legal system NEVER turns out well. They do not have the desire to enforce the law in an even-handed manner. The voters were snickered into voting for Proposal 1 for financial disclosure. What they got was a relaxing of term limits (advertised as a toss in) and a piece of fraud masquerading as “financial disclosure”. Previous TBRs have shown how much of a fraud this legislation actually is.
DANA NESSEL: She has been an ongoing disaster. Re: Flint, most first year law students would have known the one-man grand jury was “problematic”. This should not surprise us. Her intervention in the Danielle Stislicki case was equally “successful”, as she was spanked in the courts at all three levels. As for not going after Shirkey or any of the other politicians, do you think it might that she would have to go after some Democrats as well? How about Macomb County property developer Jim George and his recent donations and subsequent appropriation? Simon Shuster of Bridge Magazine has a nice article on this in the May 23, 2024 edition of Bridge.
JOCELYN BENSON: She could do more but seems more intent on doing things that will benefit her career. Her intervention (endorsement) in the 3rd congressional district for Adam Hollier over the incumbent Shri Thanadar is emblematic of this. It appears that Shri’s offense was his ancestry and where he was born and that was enough for her to endorse someone whose staff engaged in wholesale forgeries and fraud to get on the ballot. For the state’s chief election official, that is best described as an unforced error. And aggressively going after lobbyists (and let’s be honest, donors) does not appear to be something she wants to do either. This is rather disappointing considering what she implied was her agenda when she sought the office. And remember, if you get too many donors and lobbyists mad at you, money might get a little tight. And it’s hard to win if the donor class decides to dump you or ignore you. The Michigan GOP in 2022 can enlighten her on that. But as she was a beneficiary of this, she should know it already. Maybe she could call Terry Lynn Land for some advice. Or maybe Bob LaBrant. But as long as they get cover from the media, I seriously doubt it.
Te: Whuffi:The Steele dossier is not entirely BS. There was indeed election interference after 1/5/21, Kangaroo courts would have been dismissed by now if they were not based on legitimate findings. Go ahead and vote for the felon SOB Ashley and Hunter Biden are not running for anything..
The Secretary of State’s Bureau of Elections (BoE) is responsible for overseeing elections, campaign finance, and lobbying disclosures in Michigan. Referrals to AG Nessel come from the BoE.
Jonathan Brater, The Director of Michigan’s Bureau of Elections, is the son of former State Sen. Liz Brater (D-Ann Arbor). Everyone in his family are Democratic donors – except for Mr. Brater, of course.
‘Non partisan’ claims are usually a form of gas lighting in Michigan
The 2018 election cycle was controlled by the progressives from Ann Arbor.
The flooded Hash Bash that April with their preferred candidates and recruited delegates to control the Michigan Democratic Party nominating convention.
This was how Dana Nessel was able to upset Patrick Miles, former U.S. Attorney, for the Democratic nomination of Michigan Attorney General. It was a rare time where UAW-endorsees lost in the nominating process in the Michigan Democratic Party.
What a coincidence!
Jonathan Brater joined the Michigan Department of State as a legal policy director in January 2019. He became Director of BoE in January 2020.
The Ann Arbor Democratic Party is one of the most cohesive, left-wing and well-organized political groups around.
I can recall one winter a number of years ago during a snowstorm the AADP was holding its election of officers on a Saturday morning. Despite the poor weather, the parking lot of the Ann Arbor Community Center was overflowing. Some attendees had to park their cars a block away to attend. There was a mix of students, radicals, and middle-of-the-road Democrats. They were very vocal and put many many hours into organizing their events. We had some of the most influential elected officials attend on a regular basis.
On the other hand the AA Dems counterpart, the Ann Arbor Republican Committee – which was then led by Jim Hood, Jr., was the oldest city GOP committee in the state – dating back to the late 1800s. They were a friendly group but their influence was dwindling in politics. They fielded City Council candidates that regularly lost.
Marcia Higgins was one of the last GOP City Councilwomen until Mayor John Hieftje persuaded her to become a Democrat.
I counted nine comments, although some commented more than once. Of these nine, only two gave their real name. Why no courage from conservatives/republicans? Brother Bill shouldn’t allow any comments by persons who don’t use their real name. Of course, that would cut down on republican blather.
Oh, by the way, Dana Nessell did win two state-wide elections since republicans had won the office in five consecutive attorney general elections before 2018. If voters have been comfortable with her overall performance, that’s what counts, doesn’t it?
An incumbent Michigan Attorney General has not lost a re-election bid since 1954 – so her re-election victory does not surprise me.
Her 2022 Republican opponent is now charged by her criminally. Was this political opportunism or a fair application of the criminal law?
You are right. There is a Timothy Sullivan listed in my bar directory – so “Tim Sullivan” appears to be a real person – not some alias. Is Robert Nelson actually a person also?
“Whuffagowie” is actually an American Indian name.
Mark, I can assure I am a real person and not a robot.
Tim/
Using your “actually a person” logic, some may ask, are you a real person?
Yes, not a robot either.
Mr Haynor, you are apparently asking for our personal information. Why? So you or your comrades can dox us? Or cancel us? Most blogs prefer their participants be pithy – look it up. But foreseeing that being pithy may be too honest for some softies, we prefer pseudonyms. For your information I for one am neither conservative nor republican, although I vote that way a lot. Why? Because I don’t vote for global socialists or communists. Leaves slim pickins to vote for from your side of the quadrant these days.
We give full personal profiles to brother Bill when we sign up for TBR. True, if you can’t live with that, convince brother Bill to provide our personal info and you’ll never read my blather again.
No, I didn’t ask for personal information, I only asked for the actual names who respond to this blog. Pithy doesn’t mask your and others’ cowardness. Giving testimony, even in blogs requires some honestness, which you and others lack. But that seems to be the current republican mantra today.
Whether brother Bill ever requires actual names is up to him. But for me, I’d rather not read your blather, unless you put your actual name with it.
I’ve voted for both republicans and democrats for over 50 years. Not many republicans lately though, because they’ve lost most if not all any ideals based on facts, logic, and reason. Need I say more?
Sir, when you’ve appeared in TBR sufficiently to demonstrate you are not a drive-by troll, but actually understand the terms of which you bandy, re, “. . . cowardness [sic] . . .”, “facts, logic, and reason”, I might elaborate concerning your angst. In the meantime I decline to cast my pearls in your direction; I perceive it would be hard to make a silk purse of you
In preparation of your quixotic quest to pierce the ephemeral pseudonym veil, I suggest you study up on topics such as Publius, Philo Publius, Bonhomme Richard, Silence Dogwood, Mark Twain, Richard Bachman, Stan Lee, Dr. Seuss, etc, etc ad infinitum
I use my name proudly, as I have always done, therefore don’t have to use a pseudonym as others do. Even writing a letter to the editor of a newspaper requires people to use their real name.
Comparing yourself to writers who used pseudonyms, shows pomposity. Of course, maybe that’s why you use the handle “Royal.”
One major legal case where the Michigan Department of Attorney General made high questionable – if not clearly political – decisions in was the criminal case against Macomb County Prosecutor Eric Smith.
GOP activists served the Freedom of Information Act requests upon Macomb County and an attorney enforced the expected denials and stonewalling by the county by filing a lawsuit to compel production of the financial documents that showed that Smith’s office had engaged in financial mismanagement of forfeiture funds that had been earmarked to finance law enforcement activities within the county.
The Michigan State Police conducted an extensive investigation that revealed and confirmed that funds were being expended for improper purposes to the tune of about $600,000. Security surveillance systems for Eric Smth’s home, church donations floral bouquets, golf course rental for a party, musical equipment and home computer system were some of the more outrageous personal expenditures that were authorized by top-level officials in the office of Macomb County Prosecutor.
Smith’s defense attorneys were able to negotiate a plea agreement where Smith would receive a one-day jail term for his his crime. Oakland County Circuit Court Judge Nanci Grant indicated taht her “hands were tied” from imposing a stiffer sentence upon Smith due to the generous plea terms that the Michigan Department of Attorney General had imposed.
Did Dana Nessel toss a lifeline to a fellow Democrat in distress? Why were the plea terms so lopsided in favor of Smith. Smith’s chief assistant Ben Liston received a 60-day jail sentence per his plea agreement – even though he cooperated with investigators in giving important evidence in support of Smith’s prosecution.
The scandal involving Smith resulted in voters electing the first Republican Party county prosecutor in Macomb County history. Voters in Macomb County have seen through the shenanigans and the Republicans have gained most of the county officer elected positions.