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Lawyers for Brady, rival rebut claims of illegal campaign payoff

Scoffing at the depiction of the money as a covert payoff, attorney James Eisenhower said that the funds were intended in part to acquire exclusive rights to valuable polling data from the primary challenger.

U.S. Rep. Robert Brady
U.S. Rep. Robert BradyRead more(STAFF PHOTO)

U.S. Rep. Robert Brady's lawyer pushed back Wednesday against federal prosecutors' claims that the congressman secretly paid a political rival $90,000 to drop a bid to unseat him in the 2012 Democratic primary.

Scoffing at the depiction of the money as a covert payoff, attorney James Eisenhower said that the funds were intended in part to acquire exclusive rights to valuable polling data from the primary challenger, Municipal Court Judge Jimmie Moore.

But almost as if they had anticipated that explanation, government lawyers shot back in a court filing made public for the first time Wednesday. At the time Brady bought the data, they said, the poll in question was irrelevant, outdated, and contained information that the congressman had already had his possession five months before his campaign cut the checks.

What's more, wrote Assistant U.S. Attorney Eric L. Gibson, the price Brady paid was twice what it cost Moore to commission the survey.

"The poll was over a year old, [it] analyzed a match-up between [Brady] and a challenger who had already withdrawn from the race, and the poll analyzed a primary election that [Brady] had already won," the prosecutor wrote.

Those dueling explanations of a payment that has brought FBI agents to the doorstep of one of the city's most powerful Democratic power brokers emerged a day after prosecutors announced that one of Moore's top campaign aides had admitted her role in a scheme to hide the matter on her former boss' campaign-finance filings.

Neither Brady nor Moore has been charged with a crime. Nor were they identified by name in the court documents that outlined the plea Tuesday by Moore's former campaign manager and ex-fiancée, Carolyn Cavaness.

But Cavaness' cooperation with authorities has raised questions about where investigators hope to take their probe next and whether they have set their sights on Brady, the second-longest-serving U.S. representative in the state and the man who has led the Philadelphia Democratic City Committee for more than three decades.

Campaign finance experts differed on whether Brady's alleged deal with Moore fell within legal lines.

"It's long been the case that candidates running in the primary have been allowed to encourage minor candidates to drop out of the race by offering to help them raise money to retire whatever debts they incurred," said Brett G. Kappel, a Washington-based campaign lawyer.

Attorneys for the congressman and his onetime rival maintained Wednesday that their clients had acted within the law.

"It doesn't mean it's a crime for someone to drop out of a campaign and for an opponent to fund legitimate expenses of that person because he was dropping out and to unify the party," said Jeffrey Miller, Moore's lawyer, speaking for the first time about the investigation. "The intention might not have been malevolent."

For his part, Eisenhower rebuffed prosecutors' claim that Brady had attempted to interfere with the FBI investigation into the transaction by contacting a potential witness in the case.

"We categorically deny that there was any attempt to influence a witness," he said.

The lawyer conceded that Brady had obtained Moore's polling data months before the congressman paid for it. Someone had slipped the information to Brady at the 2011 Pennsylvania Society weekend, an end-of-the-year confab for the state's political elite in New York, he said. Eisenhower maintained, however, that officially buying the information allowed the congressman to control its future use.

Moore's campaign-finance reports say he paid about $30,000 for the poll of 700 likely Democratic voters in the 2012 primary election conducted by Lake Research Partners, a national polling firm that does work with the Democratic Party and affiliated groups

Obtained by the Inquirer and Daily News on Wednesday, the document is more extensive than most polls made public – weighting in at 533 pages – and focused on how voters in Pennsylvania's First Congressional District weighed a number of issues, including jobs and economic inequality. It also measured Moore's biography against how voters felt about Brady's personality and job performance.

"It was one of the most detailed polls, in his political advisers' opinions, that they had ever seen," Eisenhower said. "The congressman was interested in acquiring it exclusively and not having the Moore campaign peddle it to future challengers."

Prosecutors in Cavaness' plea agreement dismissed that explanation as a ruse to cover up the true intentions behind the Brady campaign's $90,000 payment to Moore.

The primary challenge Moore posed to  Brady was hardly formidable. Then retired from the bench, Moore had less than $4,000 in the bank at the end of 2011 compared to the more than $750,000 Brady had on hand in the months before the former judge withdrew from the race.

According to Cavaness' plea document, which was unsealed Wednesday, Moore contacted Brady in February 2012 when he first began considering dropping out.

After meeting with the congressman later that month, Moore allegedly told Cavaness that Brady had agreed to cover their campaign's outstanding debts – including more than $20,000 Moore had personally loaned his campaign – and provide both him and Cavaness with jobs.

But because federal campaign contribution limits at the time capped the amount that one candidate can give to another's campaign at $2,000 for a primary election, Brady and Moore had to find a workaround for their $90,000 deal, prosecutors wrote.

Moore allegedly instructed Cavaness to create a political consulting firm for the sole purpose of collecting the $90,000 Brady would send their way. Brady's campaign allegedly routed the funds through payments to consulting firms led by two of the congressman's longtime advisers, Ken Smukler and Don "D.A." Jones.

Eisenhower said Wednesday those advisers eventually paid $65,000 for the poll. Both men, through their attorneys, have denied wrongdoing.

"It was not a campaign contribution," Eisenhower said. "It's a payment for an asset, just like buying a piece of furniture or computers."

Jones paid an additional $25,000 to hire Cavaness as a subcontractor to work on Brady's general-election campaign, though prosecutors maintain she never did any work.

"D.A. Jones handled the details of that," Eisenhower said. "The congressman never met Ms. Cavaness and would not know her if he met her today."

None of the $90,000 ever showed up on Moore's campaign-finance filings, and less than half of that sum actually went toward paying down his campaign debts, according to Cavaness' plea agreement.

"The remainder of the funds were spent by [Cavaness] and [Moore] on personal expenses," Gibson, the prosecutor, wrote.

If any of the money from Smukler and Jones went toward retiring Moore's campaign debt, it should have been reported on his campaign-finance filings, said Adav Noti, senior director of the nonpartisan Campaign Legal Center and a former associate general counsel for the Federal Election Commission.

"In this case, the money was coming out of Brady's own campaign account, so he was required to disclose it," Noti said.

Brady's campaign filings from the period reflect payments to Smukler and Jones. But Moore's do not show any payments coming back to his campaign – a fact that led to Cavaness' guilty plea Tuesday.

Miller, Moore's lawyer, said his client was not to blame for any omissions.

"Everyone involved in this scenario has a different role, a different degree of involvement," he said. "It's not like everyone is guilty of an offense. Some could be and some definitely are not. … The fact she pled guilty doesn't mean he is guilty of any offense whatsoever."

Staff writer Nancy Phillips contributed to this article.