OK. The Justice Department won’t investigate. But can’t Kweisi Mfume sue?
To review the bidding (which Josh Marshall has been all over):
Bob Ehrlich and Michael Steele brought in busloads of homeless African-American people from Philadelphia to black precincts in Prince George’s County, Maryland, to hand out fliers headed “Ehrlich-Steele Democrats” and showing the pictures of three important African-American Maryland politicians, including Kweisi Mfume (former Congressman, former President of the NAACP). One of the three had indeed endorsed Steele, who is black, against Ben Cardin, who is white and who beat Mfume in a tough primary; none of them endorsed Ehrlich.
The natural inference is that they were brought in from Philadelphia rather than being recruited from the plentiful supply of black homeless folks in Prince George’s County and in Baltimore because (1) they didn’t want the news of their recruiting efforts to hit the newspapers and (2) it was easier to fool out-of-towners into thinking that Erlich and Steele were Democrats.
And no, this wasn’t some rogue operation run by a consultant. They’d done it before; Ehrlich’s wife greeted the buses bringing in the Philadelphians; And Ehrlich ackowledged the program, unapologetically.
Arguably, the program was an attempt to defraud both the Philadelphians who were misled about what they were being asked to do and the Maryland voters who were misled about which candidates the people pictured in the fliers were supporting. (The Marylanders weren’t fooled; it turns out that, in Prince George’s County, even the poor and poorly educated residents are politically sophisticated, and an eyewitness I met on the subway that night told me that the flier-distributors were laughed at by the voters.)
The use of interstate facilities to carry out that fraud could have supported Federal charges. But the Justice Department has decided not to investigate. That seems to me like a reasonable call; I don’t want to see FBI agents making decisions about whether particular pieces of campaign literature were or were not dishonest enough to constitute fraud.
[By contrast, the Republican National Congressional Committee’s massive use of repeated false-flag robo-calls to harass voters and fool them into thinking they’d been harassed by Democratic campaigns was clearly over the line. I’d be happy to new legislation explicitly regulating that sort of activity, what happened this year — the RNCC spent millions of dollars to make tens of millions of calls — was already clearly illegal under the laws about interstate wire fraud (it’s established law that a vote is a “thing of value,” and fraud consists of any attempt to deprive someone of any “thing of value” by trick) and the use of interstate wires to annoy. DoJ should investigate and prosecute, and the Judiciary Committees in their oversight role ought to ask, and keep asking, tough questions if DoJ ducks.]
But if a company had used Mfume’s picture to promote one of its products when Mfume had actually endorsed a rival product, he would clearly have a right to sue under the “right of publicity” doctrine. Why doesn’t that apply here? A civil suit is, for many purposes, as a good as a criminal prosecution. The point is to humiliate the Republicans, not to send them away. And in one way a civil suit is better: a witness asserting his Fifth Amendment right not to incriminate himself in a civil suit can have that refusal held against him by the judge and jury.
I can imagine a PG jury awarding Mfume very large punitive damages in such a case. Wouldn’t that be fun?