By John Celock
The decision this week by the U.S. Department of Justice to inform Kansas officials and reporters that they were intercepted in a wiretap of a former state senator could mean several things about where the investigation is going.
The U.S. attorney’s office for Kansas informed anyone who had spoken with former Sen. Michael O’Donnell (R-Wichita) between June 3 and July 1, 2015 that the call had been intercepted on the wiretap, but noted that the disclosure was required under federal law and does not mean the person is party to the investigation. A criminal defense attorney told The Celock Report that the decision by the U.S. attorney’s office to wait over 18 months to send the letters means the investigation is only wrapping up at this point.
“When they inform people they have been intercepted, at that point in time they have either wrapped up or are close to wrapping up the investigation,” Jeffrey C. Hoffman, of counsel at the law firm of Blank Rome in New York City.
Hoffman said that federal law requires that the disclosure of the intercept letters within a short time frame of the end of the period that a judge has authorized the wiretap for, typically 30 to 60 days following the conclusion. He said that prosecutors can ask for a delay in the release of the information if they believe that public notice that a wiretap had occurred would jeopardize an ongoing information.
Hoffman, whose clients have included former U.S. Rep. Mario Biaggi (D-N.Y.), said that public notice of a wiretap prior to the conclusion of the investigation would let a target know not to speak on the phone. He said that the timing of the release of the Kansas letter this week could mean several things, but noted that it means there was a reason for a long-term investigation.
“My initial reaction would be if they didn’t pick up anything of concern to them they would have released this information much earlier,” he said.
Hoffman, a former assistant district attorney in New York County, said that there could have been other reasons for the lag time between the end of the wiretap period and the sending of the letters. He said prosecutors could have believed there was something going on and did not want news of the wiretap to get out but later discovered there was nothing to proceed on and are now sending the information out since the investigation is over.
The letters, signed by Adam Smith, an assistant U.S. attorney were sent to anyone who spoke with O’Donnell on the phone during that period. Gov. Sam Brownback (R) and members of his staff, Senate President Susan Wagle (R-Wichita), several members of the Legislature and multiple reporters have received the letters. (The Celock Report has received a letter, having contacted O’Donnell during this period with questions about the Legislature being in session in June 2015 regarding taxation issues.)
“This notice does not mean that you are being charged in court with anything,” Smith wrote. “This is simply a notice which the law requires we send to you. It only means that you, or someone using a telephone subscribed to you, were intercepted talking with a person using the telephone number listed above.”
Hoffman noted that the letter is required by law to anyone who had spoke to O’Donnell for that month.
“The statue requires that whoever is picked up be notified,” Hoffman said. “Just a matter of when it takes place.”
O’Donnell, now a Sedgwick County commissioner, told The Wichita Eagle this week that he was “shocked” that his phone was tapped and that he would be seeking answers as to why and would retain counsel. Two former reporters for The Eagle received letters from the U.S. attorney’s office that they were intercepted in the tap.
The Eagle wrote that staffers received letters about being intercepted on taps of the phone of businessman Brandon Steven, in May and June 2015. Steven said that he is being investigated for his poker playing and work on a casino project. It is not clear if the tap into O’Donnell is related to the Steven case. O’Donnell told The Wichita Eagle that his contact with Steven was Steven being a campaign contributor.
Hoffman said it is possible that the delay in releasing the letters to those who spoke with O’Donnell is related to the Steven investigation if prosecutors believed there was a reason to not have public notification at this point. He said while it is not typical since it is a separate investigation, it could happen.
Hoffman said that at the end of the day the question is why there was a delay. He noted that even if someone under a wiretap does not discuss something on the phone, there are other possibilities.
“In this day and age, there is idiocy, and they will send an email or text,” he said.