Michael O’Donnell’s lawyer says feds are violating state’s rights by prosecuting him

A lawyer representing Sedgwick County Commissioner Michael O’Donnell on money laundering and banking and wire fraud charges says the federal government has no business prosecuting O’Donnell.

In a fiery response to a federal filing in Wichita U.S. District Court, lawyer Mark Schoenhofer wrote that the federal prosecution of O’Donnell violates states’ rights and could upset the balance of power between federal and state governments.

Schoenhofer opened the argument with a paragraph — in all capital letters and bold-faced type — accusing prosecutors of an “ATTEMPT TO REDIRECT THE COURT’S FOCUS FROM THE OBVIOUS PROSECUTORIAL OVERREACH AT THE HEART OF THIS CASE. “

At most, O’Donnell should be facing either misdemeanor state prosecution or an administrative fine from the Kansas Governmental Ethics Commission, Schoenhofer argued.

A footnote in the filing said O’Donnell has self-reported his violations of state campaign finance law to the state commission.

“Permitting the (federal) government to arbitrarily select one candidate among a dozen over the past ten years — who has allegedly committed a campaign finance violation — for federal prosecution not only disrupts our nation’s balance of power . . . but also invites a sweeping expansion of federal criminal jurisdiction,” Schoenhofer wrote.

The brief was filed in response to a filing last week by federal prosecutors, who cited several cases they say set precedent for prosecuting a local official in federal court.

The basic allegations against O’Donnell are that he converted campaign funds to his personal use and/or gave money from his campaign account to friends for non-campaign-related purposes.

The indictment also charges that he filed false reports to the Governmental Ethics Commission seeking to cover up the illegal payments. According to the U.S. Attorney’s Office, the indictment says that O’Donnell provided false information in five reports he emailed to the state ethics commission in 2016 and 2017.

The federal prosecutors said in their filing that the situation is almost identical to a 2015 Louisiana case where the court ruled a politician could be prosecuted for federal fraud because he had solicited money for a campaign and used it for other purposes.

That court ruled the politician’s actions were “consistent with the conduct the federal fraud statute was intended to proscribe,” according to the prosecutors’ argument.

Schoenhofer, however, wrote that “the federal prosecutors in this case have bulldozed over traditional principles of federalism and deference to states in local criminal matters.”

In addition, Schoenhofer contended that prosecuting O’Donnell harms the state itself.

“Depending on whether the (federal) government selects a particular state candidate for federal prosecution or not, a campaign finance violation could result in as a little as a fine — the usual penalty — or in an unusually harsh penalty such as federal prison,” the filing said. “There will be no uniformity in the handling of campaign finance violations in Kansas if the government continues to intrude in an area that traditionally and statutorily lies with a state agency.”

O’Donnell is scheduled to face trial on Sept. 18 if the case isn’t dismissed or settled by then, records show.

O’Donnell continues to serve on the County Commission pending resolution of the charges.

This story was originally published August 1, 2018 at 7:51 AM.