A federal grand jury has subpoenaed a variety of payroll, expense and law enforcement records relating to Gov. Susana Martinez and two employees who worked under her at the Doña Ana County state District Attorney’s Office in 2010.
The Sept. 22 subpoena directed the 3rd Judicial District Attorney’s Office — where Martinez served as the top prosecutor before becoming governor in 2011 — to produce the records for a federal grand jury convened in Albuquerque on Oct. 6 “in connection with a criminal investigation being conducted in this District,” according to a copy of the subpoena obtained by The New Mexican through a public records request.
A spokesman for Martinez said Saturday that the governor is not being investigated.
“The Governor has not received a target letter, and she is not the target of an investigation,” the spokesman, Chris Sanchez, said in an email to The New Mexican. “She has not testified before a grand jury, and has not hired a lawyer. The subpoena frankly underscores our previous statements that any investigation is based on the same old tired allegations made by opponents with an ax to grind, apparently Anissa Ford in this instance.”
Sanchez was referring to a former campaign aide to Martinez who has said that one night during that campaign, Martinez told her to take a photo of the license plate on a sport utility vehicle bearing an anti-Martinez bumper sticker and send it to an investigator in her District Attorney’s Office to find out the vehicle’s owner. That investigator, Aaron “Kip” Scarborough, who also worked on the 2010 campaign, is one of the people for whom the subpoena sought records.
It’s unknown whether the grand jury subpoena is related to a federal criminal investigation into Martinez’s top political adviser, Jay McCleskey, who is being investigated by the FBI for payments from Martinez political committees to companies McCleskey controlled.
The New Mexican reported in November that federal investigators also have subpoenaed records from the state Taxation and Revenue Department looking into whether the agency performed retaliatory audits on former members of Martinez’s political team or state officials who ran afoul of her administration.
No charges have been filed or made public. It’s not unusual for federal grand juries to request records on individuals but not return indictments against them. But taken together, news of the probes — whether strands of one large investigation or separate inquiries — has cast a harsh light on Martinez and her administration just as she has ascended to become the newly elected chairwoman of the Republican Governors Association and has been talked about in political circles as being a possible candidate for vice president.
Martinez came under further criticism Friday after audio recordings were released of a late-night exchange with police dispatchers after officers responded to a complaint about noise disturbances and unruly behavior at the Eldorado Hotel in Santa Fe following a holiday party for the governor’s staff last weekend. In those recordings, Martinez is heard demanding to know who made the complaint and telling police to call off their officers.
The September subpoena sought records for the period between Oct. 1, 2010, and Jan. 31, 2011, a period that includes the last month of her successful gubernatorial campaign and the runup to her inauguration when she continued to raise money for her inaugural festivities.
Among the documents sought were various expense records for Martinez; Amy Orlando, then the chief deputy district attorney; and Scarborough. Like Scarborough, Orlando also worked for Martinez’s 2010 gubernatorial campaign. Neither Orlando nor Scarborough responded to detailed voice messages seeking comment for this story.
The documents sought included time sheets, pay and bonus records, travel receipts and requests for use of government vehicles for the three. The grand jury also asked for any documents related to pay raises or promotions of Scarborough in the calendar years 2010 and 2011.
The federal grand jury also sought information on records checks made by the three through state and federal criminal databases, including the FBI’s National Crime Information Center, or NCIC, a national law enforcement database used by police and prosecutors across the country.
Use of databases such as the NCIC is restricted to approved personnel who are gathering information for law enforcement purposes. Such personnel are trained in the proper use of the database, which they access through unique usernames and passwords.
Federal authorities in the past have charged law enforcement personnel with misdemeanors under a computer fraud statute for abusing the NCIC database. Authorities also audit logs of background checks made through NCIC terminals to check for abuse and may decide to take away a public agency’s access to it.
Ford, Martinez’s former personal assistant during the 2010 campaign, has said that on Oct. 24, 2010, she and Martinez noticed a vehicle parked in the lot of the Staybridge Suites in Las Cruces, where they stayed for a night on the campaign trail.
The vehicle bore an anti-Martinez bumper sticker that read, “Say No To Susana la Tejana.”
Ford said Martinez asked her to take a photo of the vehicle’s license plate and send the photo to Scarborough because of the bumper sticker. Ford sent the photo in an email.
“Tejana Susana stickers all over back and parked at our hotel,” she wrote to Scarborough.
“Cool I will see who it belongs too [sic]!!” Scarborough replied.
Federal law prohibits government agencies from giving out the identifying information tied to license plate numbers unless they’re doing so for approved purposes such as law enforcement investigations.
The national magazine Mother Jones first made a brief mention of the alleged incident in an April 2014 profile on Martinez. Ford in October 2014 went on the record about it with The Santa Fe Reporter, which also published her email exchange with Scarborough.
Ford told The New Mexican last week that she cannot confirm whether Scarborough eventually ran the license plate number through a taxpayer-funded state or federal law enforcement database in order to find out who owned the vehicle. She said she has not been called in front of a grand jury about the incident.
Responding to the coverage last year, spokesmen for the governor called the allegation a “baseless smear” and said Ford was a “disgruntled” former staffer. But they have never directly addressed Ford’s statements about the night.
Ford told The New Mexican on Saturday that it was “very common” for Martinez to inquire about the identities of individuals who were tracking her during the 2010 campaign, or about “individuals who did not support her politically” as well as those who crossed her. She cited the police dispatch recording released Friday — in which Martinez demands information from an emergency dispatcher about the source of a complaint about a hotel party involving Martinez — as an example of such behavior.
Regina Chacon, who worked in Martinez’s Department of Public Safety, told The Washington Free Beacon in October 2014 that Scarborough did not have National Crime Information Center login information. In the past, though, investigations into law enforcement personnel who misused the database uncovered cases of violators using other employees’ login information.
In his email Saturday, Sanchez again called Ford’s allegations “baseless.”
“It’s important to remember that Ms. Ford conspired with Jamie Estrada and a Democrat operative under indictment for child pornography to illegally steal the Governor’s emails,” he wrote. Estrada, Martinez’s former campaign manager, was convicted in 2014 for his role in intercepting campaign emails after he left the campaign. (Jason Lorea is the Democratic operative referenced by Sanchez). In investigating Estrada, the FBI raided Ford’s home and seized her computer. Ford has denied having involvement in hijacking the emails and was never charged in the case.
“Mr. Sanchez should fact-check before making such false accusations,” Ford said in response Saturday. “Not only was I never charged, I also was dismissed with prejudice from a frivolous lawsuit that was driven by those those near the governor.”
Elizabeth Martinez, a spokeswoman for the New Mexico U.S. Attorney’s Office, said Friday that the U.S. Justice Department, including the New Mexico U.S. attorney and the FBI’s Albuquerque office, “respectfully declines to comment.”
After winning the governor’s office, Martinez named Orlando to succeed her as the 3rd Judicial District attorney. Orlando lost the election to retain the seat in 2012 to Democrat Mark D’Antonio, whose office released the grand jury subpoena to The New Mexican. Martinez later named Orlando as the top attorney at the New Mexico Department of Public Safety. She did not respond to a request for comment last week.
Following the April 2014 Mother Jones article, Democrats in the state filed a public records request to the 3rd Judicial District Attorney’s Office that asked for information about background checks made during Martinez’s tenure. D’Antonio later released a report that said records during Martinez’s tenure at the office had disappeared. Then-Attorney General Gary King launched an investigation into the issue. King, Martinez’s gubernatorial opponent, never filed any charges. Martinez’s campaign accused the two Democrats of playing politics during an election year.
Paul Rothstein, a professor at the Georgetown University Law Center, said in an email that the subpoena seems directed at obtaining information about whether any of the public resources of the 3rd Judicial District Attorney’s Office were used for Martinez’s gubernatorial campaign.
“If there was such use of public resources for political (i.e. personal) purposes, this would be deemed tantamount to theft of government resources,” he said Friday, “a diversion of or appropriation of public resources to or for personal political benefit, which, of course, would be illegal.”
He added that “one cannot be sure” what the subpoena means, but that federal prosecutors may have evidence of misuse of government resources and are seeking to shore up their case.
Justin Horwath can be reached at 986-3017 or email@example.com.