Federal prosecutors filed court papers late Thursday asking a judge to order former power broker Harvey Whittemore to begin serving his two-year prison term for breaking campaign contribution laws.
Senior U.S. District Judge Larry Hicks had allowed Whittemore to remain free while he appeals his May 29 conviction for unlawfully funneling $133,400 in contributions to U.S. Senate Majority Leader Harry Reid.
But prosecutors said in their motion that the judge’s basis at the time for allowing Whittemore to remain free — a U.S. Supreme Court decision potentially favorable to Whittemore on campaign spending limits — no longer exists. The high court issued a ruling in that case Wednesday that prosecutors said upholds the underpinnings of Whittemore’s conviction.
Prosecutors asked Hicks to set a new date for the 61-year-old former lobbyist and developer to surrender to federal prison authorities.
Whittemore was convicted of giving money to 29 family members and employees of his former development company, Wingfield Nevada Group, and then using them as “conduits” for contributions to Reid’s re-election campaign in 2007 in a scheme to skirt federal campaign laws. The Nevada Democrat was not accused of wrongdoing in the case and did not testify at Whittemore’s trial in Reno.
The Supreme Court this week found unconstitutional the current limit on the total, aggregate amount of money an individual can give various candidates in an election.
But in their court papers, Assistant U.S. Attorneys Steven Myhre and Elizabeth White said the court upheld limits on individual contributions to individual candidates. Whittemore was convicted of violating those limits.
“In short, the possibilities on which Whittemore based his hopes … did not come to pass,” the prosecutors wrote. “To the contrary, the court reiterated its previous holding that base limits ‘serve the permissible objective of combating corruption’ and emphasized that base limits ‘remain the primary means of regulating campaign contributions.’”
Late Thursday, one of Whittemore’s lead defense attorneys, Vincent Savarese, suggested prosecutors do not have authority to ask Hicks to order Whittemore to prison.
“We don’t believe that the motion is appropriate because jurisdiction of this case is now in the 9th Circuit and not in the district court where this motion was filed,” Savarese said. “Secondly we don’t believe that the motion has merit.”
Savarese said defense lawyers plan to file an opposition.
Whittemore’s lawyers filed their opening brief with the 9th U.S. Circuit Court of Appeals late Wednesday, arguing his conviction should be overturned based in part on a new Supreme Court ruling.
They argued that placing limits on the amount of money he can contribute to an individual candidate violates his First Amendment right to free speech.
Whittemore, who once wielded much influence in Nevada politics, maintains that while he encouraged his family and employees to contribute to Reid’s campaign, the checks he gave them were “unconditional gifts” with no strings attached that became their’ property to do with as they pleased.
“Mr. Whittemore engaged in two perfectly lawful activities,” his lawyers argued. “He gave unconditionally portions of his personal wealth to the object of his bounty. And he likewise exercised his fundamental First Amendment right to advocate and solicit support for the political candidate of his choice.”
Whittemore, who is free without bail pending the outcome of his appeal, once headed a billion-dollar real estate company and pulled the strings of state politics as a prominent lobbyist for more than a decade.
The Associated Press contributed to this report. Contact Jeff German at email@example.com or 702-380-8135. Find him on Twitter @JGermanRJ.