The Justice Department says it can justify prosecution of former Republican Sen. Gilbert Baker for bribery in a case alleging he funneled campaign money to then-Judge Mike Maggio to get him to reduce a verdict in a nursing home negligence case in Faulkner County.

Maggio pleaded guilty and is serving a 10-year federal sentence. There are indications he may be cooperating anew with the government. Baker was the middle man for money from Fort Smith nursing home magnate Michael Morton, who owned the nursing home that benefitted from Maggio’s $4.2 million reduction of a jury verdict. Morton has not been charged and has said he merely made legal campaign contributions to Maggio as he did to many other judicial candidates.

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Baker asked that  the charge be dismissed because it failed to make a case for federal bribery or wire fraud. He said, for one, that the charges are based on text messages and phone calls for which the government can’t produce a record. He also argued Maggio couldn’t be considered an agent of government under the bribery statute.

Said the U.S. attorney’s office:

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The Indictment sufficiently alleges a connection between the alleged bribe and a state agency, as it alleges that Maggio accepted the bribe in exchange for a favorable ruling on a case that was before him. As the Eighth Circuit has previously held regarding these same underlying facts, “We have no doubt that when a judge issues an order remitting a judgment in a case before him, he is acting in connection with the business of his court.”

Baker also argued there was insufficient evidence of a quid pro quo deal between Baker and Maggio. Said the government:

As Baker’s motion appears to recognize, with respect to a payor defendant, there is “no universal requirement that bribe payors and payees have a meeting of the minds about an official act. A payor defendant completes the crimes of honest-services and federal-funds bribery as soon as he gives or offers payment in exchange for an official act, even if the payee does nothing or immediately turns him in to law enforcement.”

The response contended that the government needed only to show that Baker intended to strike a deal and Maggio’s action was evidence of Baker’s intent.

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The government acknowledged case law concerning campaign contributions that says an attempted quid pro quo must be specific, but “this does not mean it must be stated expressly.”

The government continued:

The Indictment sufficiently alleges a specific quid pro quo, namely that Baker offered the campaign contributions in exchange for Maggio agreeing to act in his official capacity in the pending civil lawsuit to benefit Company A and, by extension, Individual A. The Indictment further alleges that while the motion for remittitur or new trial was pending, Baker advised Maggio that Individual A would contribute financial support to Maggio’s campaign. Baker “communicated to Maggio that Individual A was watching the civil lawsuit and would appreciate Maggio making a favorable decision.”

In his motion, Baker argues that his statement to Maggio that Individual A would support his campaign “win lose or draw”,  is proof that there was no intended quid pro quo. However, the context of this statement – an ex parte conversation with a judge referencing pending litigation, on behalf of a party and prospective campaign donor – reveals its nefarious nature. Baker’s intent also is evident in his concealment of the true source of the campaign contributions by using PACs specifically set up for that purpose (and indeed, attempting to conceal his own involvement in those PACs), as described throughout the Indictment. The jury can evaluate the intent to exchange official acts for contributions based on “words, conduct, acts, and all the surrounding circumstances disclosed by the evidence and the rational or logical inferences that may be drawn from them.”

The government also disputed a Baker theory that the money should be viewed, at worst, as an illegal gratuity rather than a bribe because Maggio got the money after he’d reduced the verdict. Said the government:

First, this is incorrect: the Indictment alleges that Baker obtained the campaign contribution checks from Individual A before Maggio entered the remittitur order. Baker concealed Individual A’s money in PACs, rather than give it directly to Maggio’s campaign, because Maggio’s judicial campaign could not accept Individual A’s money until November 21, 2013, pursuant to the Arkansas Code of Judicial Conduct. Second, the timing of a payment (before or after the official act) is not dispositive – rather, it is the effort to form an agreement that distinguishes a bribe from a gratuity, where there is no agreement.

If the motion to dismiss isn’t granted, the case is set for trial on July 26.

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