My friends and readers have raised a number of interesting questions about Annette Bosworth's arrest and impending court date. In brief:
Why hasn't Chad Haber been arrested yet?
Chad Haber committed the same perjury that Bosworth did, swearing a false circulator's oath on a petition sheet on which he did not personally witness every signature gathered. However, he did not file the petition himself. The formal charges against Bosworth include perjury and filing a false instrument. Bosworth committed an additional crime when, accompanied by campaign lackey Patrick Davis, she filed her false petition at the Secretary of State's office in Pierre. Bosworth thus broke more laws.
Haber should be arrested. It is possible, however, that investigators wanted to focus on the larger number of crimes committed by the bigger, more public fish.
And don't forget: the Division of Criminal Investigation may be working on a new set of charges involving Haber and Bosworth's apparent illegal circulation of petitions before Janaury 1.
Can Bosworth Spend Campaign Funds on Her Legal Bills?
Maybe. The Federal Election Commission uses something called the "irrespective test" to determine legitimate uses of federal campaign funds:
Under the "irrespective test," personal use is any use of funds in a campaign account of a candidate (or former candidate) to fulfill a commitment, obligation or expense of any person that would exist irrespective of the candidate’s campaign or responsibilities as a federal officeholder. 113.1(g). More simply, if the expense would exist even in the absence of the candidacy or even if the officeholder were not in office, then the personal use ban applies [Federal Election Commission Campaign Guide: Congressional Candidates and Committees, August 2011, p. 53].
The FEC says it "decides on a case-by-case basis whether legal expenses are considered 'personal use' and thus are expenses that a candidate may not pay for using campaign funds." In this case, one could argue that the charges against Bosworth would not exist if she hadn't been a candidate. She would not have circulated, signed, or filed a petition if she hadn't been running for Senate. The FEC has allowed campaign expenditures for legal fees in cases involving violations of campaign finance rules.
How donors will react if Bosworth uses their money to defend her admitted law-breaking is a different question.
Can Joel Arends represent Bosworth in this trial?
Bosworth's most recent attorney of record could very likely be a witness in the Bosworth trial. Joel Arends notarized numerous petition sheets, including some of those on which Bosworth committed perjury. He could easily be called by the prosecution or the defense to testify about Bosworth's incautious public claim (and hasty, inartful retraction) that her legal counsel advised her that her incorrectly sworn petitions were fine. Representing a client at a trial in which one is a witness doesn't work well.
Bosworth might have further interest in keeping Arends off her legal team. Last month she alleged that Attorney General Marty Jackley was attacking her simply because he's trying to help Mike Rounds win the Senate election. She based that allegation on Jackley's participation in a fundraiser with Rounds. She may not have noticed, but that fundraiser was hosted by the Rushmore PAC, whose leader, Dan Lederman, employs Joel Arends as his lawyer. Why would Bosworth want to risk having her own lawyer soft-pedal his efforts to benefit his entrenched GOP pals... unless Bosworth herself was planning on being convicted, then appealing on the basis of bad-faith legal counsel?
A brief look at Mr. Heidelberger's challenge to Dr. Bosworth's petitions exposes wild leaps of reasoning, as well as legally insufficient and petty attempts to invalidate the signatures of actual South Dakota residents in an effort to disenfranchise them from the democratic process.... The Bosworth campaign is confident that its petitions will pass muster and substantially comply with South Dakota election law and administrative regulations [Joel Arends, quoted in David Montgomery, "Bosworth's Nominating Petitions Challenged," that Sioux Falls paper, 2014.04.02].