Commentary

Stockard on the Stump: Durham’s subpoena leaves egg on Kelsey’s face

October 29, 2021 5:00 am
Sen. Brian Kelsey, flanked by Sen. Heidi Campbell, D-Nashville, and Sen. Todd Gardenhire, R-Chattanooga. (Photo: John Partipilo)

Sen. Brian Kelsey, flanked by Sen. Heidi Campbell, D-Nashville, and Sen. Todd Gardenhire, R-Chattanooga. (Photo: John Partipilo)

Indicted state Sen. Brian Kelsey blamed his former friend, ex-state Rep. Jeremy Durham, this week for flipping in exchange for immunity from the feds as he faced his own federal probe.

The problem is there’s a big sticking point: Durham didn’t get subpoenaed until March 11 when he was ordered to testify before the federal grand jury in Memphis, according to a copy of the subpoena obtained by Tennessee Lookout.

It wasn’t as if he was shopping a beef with Kelsey to the feds.

As part of the subpoena, Durham was required to provide copies of all documents and records related to Kelsey, Kelsey’s wife, Amanda Bunning, his wife, Jessica Durham, Josh Smith, Andrew “Andy” Miller, Zach Crandell, Matt Schlapp of the American Conservative Union, Dan Schneider, Ryan McGowan, Clifford Pintak, Kelsey for Congress, Red State PAC, VoteKelsey.com, American Conservative Union, Citizens 4 Ethics in Government PAC and any entity representing Kelsey and his associated political campaigns.

In addition, he was required to turn in all records related to the transfer of funds between those entities and all records related to the transfer of funds between those entities and the Standard Club PAC. Appointment books, diaries, calendar, meeting minutes, receipts, invoices, statements, journals and ledgers showing bills or financial transfer, as well as correspondence such as emails, text messages, voice mails, phone calls, logs and metadata were to be given up. 

In short, Durham had to tell all.

Former state representative Jeremy Durham. (Photo: Tennessee General Assembly)
Former state representative Jeremy Durham. (Photo: Tennessee General Assembly)

Besides the time frame of the subpoena, Durham’s statute of limitations might have run its course, stemming from possible campaign finance violations dating back to early 2016 until March 2021. 

But there’s some question whether Kelsey, apparently unconvinced he would ever be charged, signed away the chance to dodge prosecution after five years. He claimed this week the statute of limitations had run out.

Nevertheless, Kelsey, a Germantown Republican, and Smith, owner of The Standard Club, a fancy private restaurant in downtown Nashville, are charged with five counts of funneling more than $90,000 from Kelsey’s state account to his failed 2016 congressional campaign. 

In a Senate soliloquy on the first evening of this week’s special session, Kelsey took the Senate floor to proclaim his innocence, blame divisiveness and the Biden Administration and to throw out one more oddity.

In his speech, he claimed the Tennessee Journal reported the attorney for the lead witness in his case received immunity from all charges. The TNJ never reported this and called Kelsey’s assertion “erroneous.”

Durham, who is only identified in the indictment as an attorney and House member from 2013 until he was expelled in 2016, didn’t even get the chance to defend himself.

The question, though, is whether Durham actively sought out federal agents to request immunity. Based on the timing of the subpoena, he didn’t. And it’s pretty clear he got immunity for testifying in the case, but does that make him the villain here? 

And, did he have any choice? Probably not, considering the indictment claims he helped defraud the United States through the violation of campaign finance acts.

Sen. Brian Kelsey, in an impassioned speech before his Senate colleagues, didn’t mention former state representative, his apparent erstwhile friend, by name, but did throw Durham under the bus anonymously. Turns out, the date of a federal subpoena to Durham proves he wasn’t shopping a beef against Kelsey.

The other unindicted conspirator is believed to be Miller, who controlled the political action committee called Citizens 4 Ethics in Government and might have been a conduit between The Standard PAC and American Conservative Union, which made independent expenditures for radio ads supporting Kelsey’s fourth-place candidacy.

The other question is whether another round of indictments is coming. Kelsey’s wife got involved as a lobbyist for the American Conservative Union at the time. She works for the Ingram Group in Washington, D.C. now.

And several others could be on the hook, based on the subpoena of Durham.

At least one senator, Frank Nicely, defended Kelsey this week, saying Congress should let state legislators use their campaign accounts to make congressional runs. Unfortunately, federal law doesn’t allow that type of money transfer, since folks give money for one race, not another.

And just like some legislators don’t like district attorneys general who pick and choose the laws they will enforce, the state can’t decide which cases the feds will prosecute.

Is this a double standard?

Immediately after Democratic Sen. Katrina Robinson was indicted last year for allegedly stealing money from the federal grant she used to start her business, The Healthcare Institute, Lt. Gov. Randy McNally said the Ethics Committee should meet to decide her fate. 

This week, when a federal grand jury indicted Sen. Kelsey for allegedly funneling more than $90,000 to his failed 2016 congressional campaign, McNally gave him the benefit of the doubt, saying he was saddened to see the indictment and reminding people he is innocent until proven guilty.

Thanks for reminding us of the basic tenets of the U.S. Constitution.

Sen. Katrina Robinson, D-Memphis. (Photo: John Partipilo)

One wonders, though, if this is a bit of a double standard, considering Robinson is a Black Democrat from Memphis and Kelsey is a white Republican from Germantown. Of course, McNally is going to show deference to Kelsey in this world of Repubs versus Dems where the controlling party won’t be satisfied until it holds every seat in Tennessee.

But, we’ll give McNally some deference and say the difference between the two is that Robinson is a veritable newcomer to the General Assembly and holds no rank or chairmanship. Thus, the call for her to go before the Ethics Committee.

On the other hand, Kelsey was chairman of the Senate Education Committee, at least until he stepped down Wednesday night to focus on his legal defense. 

McNally gave him the job after demoting him from chairman of the Senate Judiciary Committee. Because of that rank, Kelsey could have requested a hearing before the committee within 10 days or been removed automatically as long as the indictment remains, which it will.

Sen. Brian Kelsey (Photo: John Partipilo)
Sen. Brian Kelsey, R-Germantown (Photo: John Partipilo)

You tell me if this passes the smell test.

Playing the blame game

Kelsey blamed President Joe Biden for his indictment, sort of the same strategy Robinson used to attack federal prosecutors. 

It is true that Donald Trump was president while Robinson was still in office, but he’s been out since January, sort of drying up that argument.

Using that logic, shouldn’t Kelsey have blamed Barack Obama, who was president when the feds started investigating him? Maybe he should have blamed Trump, who was president in the midst of the investigation, but then blew his re-election chances by botching the pandemic reaction.

But if Robinson was convicted on four counts with Biden at the helm, then Kelsey most assuredly is going to be found guilty. 

Truth be told, it doesn’t appear to matter who is in the White House. Federal prosecutors are going to go after anyone they think is breaking the law.

All they have to do is follow the money.

Tell me something I don’t know

Word spread this week that one of the state’s esteemed senators was sending letters to his colleagues urging them to embark on a “soft secession.”

After all, Tennessee is a “great Southern state,” according to one of the amendments passed this week.

Sen. Frank Nicely, R-Strawberry Plains, blamed Congress for setting stringent campaign finance rules as he spoke in support of Kelsey. (Photo: John Partipilo)
Sen. Frank Nicely, R-Strawberry Plains, on a “soft secession: “We love you but we’re not going along with you this time.” (Photo: John Partipilo)

It turned out that Sen. Nicely, the Senate’s resident historian, had sent out a lengthy article (my lips got tired about halfway through) discussing the likelihood of a “soft secession” by the states from the imperial federal government, spurred by the COVID-19 pandemic.

In sending the article to Senate members, Nicely said “it helps explain why we need a special session, why we basically need to tell the federal government, ‘Hey, we still love you but we’re not going along with you this time.’”

Nicely said the same thing to me when I interviewed him for a recent article. Consequently, this isn’t news. Why am I writing about it?

In the words of the late, great Tom Petty, “It’s a one story town.”

Keeping down belligerence

Four Democrats were appointed to serve this week on the House COVID-19 Committee, Reps. Dwayne Thompson, Jason Hodges, Jason Potts and Barbara Cooper. 

It was noted that Cooper is 91 years old and had already notified the Speaker’s Office she wouldn’t be attending this week’s confab. Potts has been mostly AWOL for about a year. That left Thompson and Hodges to carry the Democrats’ mantle, but they opted to stay silent as Republicans pushed their bills to passage in Thursday’s committee.

On the bright side, it probably shortened the meeting’s time by about two hours. If Democratic Reps. Bo Mitchell or Antonio Parkinson had been on that committee, we might be there still.

All for naught?

“Nothing would make me happier than for this to be the most irrelevant legislation we’ve ever passed.” — Senate Majority Leader Jack Johnson in passing a COVID-19 “Ominous Bill” and hoping the pandemic will die. That’s the word some legislators used to describe it, and they weren’t even opposed. They might have meant “Omnibus.” Add that to the legislative dictionary of mangled words.

 

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Sam Stockard
Sam Stockard

Sam Stockard is a veteran Tennessee reporter and editor, having written for the Daily News Journal in Murfreesboro, where he served as lead editor when the paper won an award for being the state's best Sunday newspaper two years in a row. He has led the Capitol Hill bureau for The Daily Memphian. His awards include Best Single Editorial from the Tennessee Press Association.

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