A letter sent to the Gallatin County prosecutor by a Democratic primary candidate for Montana's U.S. House seat illustrates the delicate political dance facing challengers seeking to capitalize on a scandal in a potential opponent’s past.
John Heenan, one of six Democrats running for the House, asked Gallatin County Attorney Marty Lambert Tuesday to bring charges against Rep. Greg Gianforte, a Republican, for lying to investigators after Gianforte assaulted a reporter on the eve of his election to the House last May.
In June, Gianforte pleaded guilty to misdemeanor assault for “body slamming” Ben Jacobs, a reporter for the Guardian. Gianforte paid a fine, restitution and completed community service and anger management classes. In addition, he made a $50,000 donation to the Committee to Protect Journalists to avoid civil litigation.
Documents released by a Gallatin County court earlier this month show that Gianforte misled investigators immediately after the assault. Speaking to a Gallatin County Sheriff's sergeant on the eve of the election, Gianforte said Jacobs instigated the assault by grabbing his wrists and said the "liberal media" was "trying to create a story." Others who witnessed the assault, including a Fox News television crew, contradicted Gianforte’s account.
Gianforte’s campaign sent out a press release the night of the assault blaming Jacobs, but the congressman later admitted he was the aggressor and apologized to Jacobs both in court and in a letter, saying Jacobs "did not initiate any physical contact with me."
Although investigative documents released by the court show Gianforte misled investigators, his office issued a statement the day of the document release that said "no one was misled'' the night of the assault "and anyone who says otherwise was mistaken.''
That assertion prompted a letter to Gianforte on Monday from the Guardian demanding he "immediately cease and desist from making any further false and defamatory statements about Mr. Jacobs," the reporter.
On Tuesday, Heenan released a letter he sent to Lambert, the prosecutor, saying that Gianforte’s false statements to law enforcement should be considered a separate crime and urging Lambert to bring charges against the congressman. Heenan, who is a lawyer, also offered to serve as a special prosecutor in the case.
Lambert said Tuesday he would not bring further charges and expressed dismay at Heenan's offer to help prosecute.
In his letter, Heenan wrote: “I am making this offer with the sincere hope that it will be accepted. I do intend, however, to make my concerns as expressed in this letter public as I know that I am not the only one concerned that our congressional representative will be allowed to get away with the crime.''
Heenan said his move wasn’t purely political.
“What I see is someone who has committed a crime that hasn’t been charged for it and therefore hasn’t been punished,” he said. “As a concerned citizen, I wanted to urge Mr. Lambert on behalf of the Gallatin County Attorney’s Office to bring those charges. This isn’t me as a candidate. This is me as a concerned citizen and as a lawyer that knows the law and knows when other people lie to law enforcement, there’s repercussions.”
Heenan is in a crowded primary with six Democrats who have announced they would like the opportunity to unseat Gianforte next fall. They include former nonprofit director Grant Kier of Missoula, Bozeman legislator Tom Woods, former state legislators Kathleen Williams of Bozeman and Lynda Moss of Billings and Jared Pettinato, an attorney from Whitefish who now lives in Bozeman.
Though the others have taken jabs at Gianforte, Heenan’s action Tuesday may be the most overt.
“You can’t ignore the scandal because you want people to think about it,” said Jeremy Johnson, an associate professor of political science at Carroll College in Helena. “But in a Republican-leaning state where a Democrat is trying to win, that’s not sufficient. You have to make a case for yourself while trying to discredit someone else.”
At this point, no Democrat is running against Gianforte; they're facing off against each other to win that chance. But a strong message against the congressman could be enough to push a candidate through to a primary victory in a crowded field, one in which Johnson said no one appears to have a strong advantage based on existing name recognition.
“Most of them don’t have a large, statewide, strong profile yet,” Johnson said. “You have to build yourself up for the primary electorate. There’s not much of a downside in strongly criticizing Gianforte for a Democratic primary electorate.”
Kier said it’s “fair for us to hold the congressman accountable for … his behavior attacking a reporter and lying about it after to the fact.” But, Kier added, for his campaign it’s important to pivot to other issues.
“My desire to run for this office is about serving Montanans, not about beating up on one particular candidate,” Kier said. “To me we’re the best poised in the primary if we focus on what it is we’re going to do for Montanans.”
On Twitter, Kier’s campaign manager, Jake Brown, was more direct, tweeting: “I'm all for holding (Gianforte) accountable, but ultimately that's a decision for law enforcement. Dems in Montana need to present Montanans with a clear message on how to serve them on the issues, and not just more political grandstanding.”
I'm all for holding GG accountable, but ultimately that's a decision for law enforcement. Dems in Montana need to present Montanans with a clear message on how to serve them on the issues, and not just more political grandstanding. #mtpol https://t.co/hqDsqDzwly— Jake Brown (@jbruise406) November 28, 2017
Heenan said one of the reasons he’s running is he believes no one is above the law, “and this seems like further evidence that’s not the case.''
"It’s been important for me to have an honest platform with an honest position that I think shows the contrast between myself and Rep. Gianforte,'' Heenan said. "I’ve answered every question that's been posed to me. I’ve put clear positions on our website. One of the biggest things that frustrates me about politicians on both sides is when they don’t say what they stand for and give platitudes.''
Heenan said he hasn’t heard from Lambert, but on Tuesday the county attorney said he felt there were no grounds for charges.
“Misleading the cops or lying to the cops in and of itself is not a crime,” Lambert said. “Something has to result from that that actually sets back the investigation or results in the loss of evidence or it results in the inability to find a witness.”
Lambert said neither law enforcement nor his office had any problems bringing charges that Gianforte ultimately admitted to.
“The facts aren’t there” to justify additional prosecution for lying to investigators, Lambert said. “On top of that, to offer — when you have announced as a political candidate to run against a crime suspect — to serve as a special deputy county attorney, I have never had that happen.”
Jordan Gross, a law professor at the University of Montana, said people can be charged under some circumstances for making false statements to law enforcement in instances where the false statement is meant to harm an investigation, but emphasized it is up to the discretion of the prosecutor.
“When we have politically charged scenarios like this, I would hope people would trust the system, trust the prosecutors, trust the judges to be fair and objective.”