Brady aide Smukler cites porn scandal as key to his defense

Ken Smukler, a political strategist for U.S. Rep. Bob Brady, believes he's found a way out from under the federal indictment he faces for alleged involvement in an illegal campaign contribution scheme.

It involves pornography.

In a motion filed last week, the 57-year-old campaign consultant and publisher of the independent weekly newspaper Liberty City Press alleges that FBI agents contrived a bogus investigation against him – one that also threatened a sitting congressman – solely to seek revenge for a series of critical op-eds Smukler wrote on the Justice Department's limited involvement in the Porngate email scandal that engulfed the Pennsylvania legal community in 2015.

Although Smukler's lawyers admit they have no proof to back up that claim, they urged the judge overseeing his case to toss the charges anyway on grounds of vindictive prosecution — or at least grant them a hearing to explore the matter.

"The facts and circumstances … pose a realistic likelihood that Mr. Smukler was not indicted because of his alleged involvement in criminal conduct, but rather because of the government's desire to punish him for exercising his right to criticize the government," his lawyers Brian J. McMonagle and Jon R. Fetteroff wrote in court papers.

Their motion is at times a head-spinning and convoluted document, drawing conspiracy-board-worthy connections from Smukler's critical takes on other Justice Department corruption investigations — published in Liberty City's pages — to the allegations at the center of his own current legal problems.

But in its 29 pages, the filing also lays out a series of attacks on the at-times meandering, two-year FBI investigation that has now landed Smukler in court – attacks that could form the basis for his defense should he take his case to trial in April.

Smukler was charged in October with helping Brady and others to disguise what prosecutors have described as an illegal $90,000 payoff to persuade the congressman's 2012 Democratic primary challenger – former Municipal Court Judge Jimmie Moore – to drop out of the race.

While Moore and another Brady campaign aide have pleaded guilty, both Smukler and the congressman contend that the transaction was entirely aboveboard.

And despite government lawyers naming Brady, in court filings, as part of the alleged conspiracy, he has not been charged with a crime and the statute of limitations on most charges he could have faced has since run out.

Smukler's lawyers seized on that fact in their motion last week, arguing that it shows that their client – not Brady — was always the true target of the FBI's probe. They contend that Smukler's purported crimes tied to the 2012 campaign were only the last in a series of theories that agents considered while scouring his past for anything with which they could charge him.

Recent court filings show that agents covertly surveilled Smukler for months in 2016 before obtaining a warrant to search his home nearly a year later.

That warrant makes only scant mention of Brady or Moore and was primarily based around financial improprieties that agents believed had occurred during former U.S. Rep. Marjorie Margolies' failed 2014 bid to reclaim her old seat – a campaign on which Smukler worked.

No charges were filed in connection with that investigation, and the Federal Elections Commission concluded in 2016 that the conduct of both Smukler and Margolies during the campaign appeared to be aboveboard – a finding that Smukler's lawyers allege the FBI hid from the judge who approved the search warrant.

But the connection that Smukler's defense draws between Porngate and the effort to prosecute him now appears to be based solely on timing.

McMonagle and Fetteroff make much of the fact that the FBI investigation began two months after the Inquirer reported that Smukler, while working with then-Attorney General Kathleen Kane, had come into possession of a trove of pornographic, sexist, and racially insensitive emails traded among state prosecutors, judges, and officials in Harrisburg and elsewhere.

At the time, an embattled Kane was wielding the illicit messages as a cudgel to strike back at her political enemies. Their release – through leaks by Smukler to news organizations – ignited a scandal that forced more than a half-dozen people from their jobs, including ex-Supreme Court Justices Seamus McCaffery and J. Michael Eakin.

Smukler — while working as a Kane adviser to disseminate the emails to the media —  also joined the public debate through op-eds penned for Liberty City, his small weekly newspaper that largely serves as a vehicle for legal notices and sheriff's sale ads.

In them, he criticized both those caught up in the Porngate firestorm and the media for its coverage of the scandal. He also directed his ire at Harrisburg-based U.S. Attorney Peter J. Smith for failing to punish six federal prosecutors in his office whose email addresses appeared on lists of recipients of the illicit messages. (None was found to have sent any of the objectionable material.)

In their court filing Friday, McMonagle and Fetteroff concluded that the investigation that led to Smukler's indictment last year had been initiated with the goal of "determining the source and scope of Mr. Smukler's knowledge of the [assistant U.S. attorneys'] involvement in the Porngate email scandal."

The motion fails to note that no lawyers from the Philadelphia-based U.S. Attorney's Office were ever tied to the scandal. Still, Smukler's lawyers point out, their client had been critical of local federal prosecutors too.

Both of the government lawyers now leading his prosecution – Assistant U.S. Attorneys Eric Gibson and Jonathan Kravis – had been involved in public corruption probes against convicted ex-U.S. Rep. Chaka Fattah and State Sen. Larry Farnese, who was later acquitted, that had drawn disapproval in Smukler's Liberty City columns in the past.

"In other words," McMonagle and Feteroff wrote without offering proof, "the government engaged in a vindictive fishing expedition to locate some basis to further investigate and charge Mr. Smukler with criminal conduct as a penalty for the exercise of his First Amendment rights."

The U.S. Attorney's Office in Philadelphia declined Tuesday to comment on Smukler's allegations. Gibson and Kravis have yet to respond to the political consultant's claims in court.

U.S. District Judge Jan E. DuBois is expected to convene a hearing to weigh the vindictive-prosecution claims and other attacks Smukler has filed on the case against him before it goes to trial in April.