Undercover FBI agents posing as businessmen interested in sports betting recorded conversations central to their investigation of Ohio's largest bribery scandal, according to court filings.
These agents retained GOP lobbyist Neil Clark in January 2019 to advance their purported interests in sports betting legislation. Clark advised them to set aside $50,000 to $100,000 to pay money to dark money groups backing three public officials, including then-House Speaker Larry Householder.
Federal prosecutors plan to use those recordings, along with others, in the trial of Householder and former Ohio Republican Party Chairman Matt Borges slated to begin in January. Householder wants to exclude some of that evidence. Ultimately, U.S. District Court Judge Timothy Black will decide what jurors are allowed to hear.
Householder and Borges, along with Clark, GOP strategist Jeff Longstreth and lobbyist Juan Cespedes, were arrested in July 2020 in connection with a nearly $61 million scheme to pass and defend a $1 billion bailout for nuclear plants.
Federal prosecutors say Clark, who died by suicide in March 2021, detailed the scheme to undercover agents posing as businessmen hoping to win a piece of a new sports betting market in Ohio. Clark warned the agents that the effort to legalize sports betting could be in jeopardy because one of the bill's sponsors, GOP Rep. Dave Greenspan, voted against the nuclear bailout, and "the speaker is very upset with him."
These agents appear to have worked on another case in Cincinnati involving former Councilman Jeff Pastor. Two agents posed as Cincinnati hotel developers offered bribes to Pastor between August 2018 and February 2019.
"Clark explained that the way politicians get exposed for 'pay to play' is through 'stupidity' or 'people who getaggrieved leak it,'" according to a filing from Assistant U.S. Attorney Emily Glatfelter.
Federal prosecutors don't plan to use FirstEnergy's deferred prosecution agreement
FirstEnergy, which previously owned the nuclear plants, admitted that it bribed two public officials, Householder and ex-Public Utilities Commission of Ohio Chairman Sam Randazzo, in a deferred prosecution agreement in July 2021. The company agreed to a $230 million fine and cooperation in the investigation.
Attorneys for Householder and Borges want to block federal prosecutors from using that document against them. But assistant U.S. attorneys said they don't intend to admit the deferred prosecution agreement as an exhibit at trial, according to court filings.
Randazzo's name might come up, but federal prosecutors don't plan to discuss payments made to Randazzo, who has not been charged and says he did nothing wrong.
Householder wants to explain the difference between bribes and legal donations
In another filing, Householder's attorneys argue that they should be able to present evidence about the difference between legal political contributions involving dark money groups and illegal quid pro quo bribes.
"Householder agrees with the government: explicit quid pro quo bribery is not protected by the First Amendment," wrote attorneys Steven Bradley and Nicholas Oleski. "But whether the government has presented evidence to prove a quid pro quo bribery is a factual issue for the jury to decide."
That is why Householder's defense wants to educate jurors about how other top politicians use nonprofits that do not need to disclose their donors.
"Householder should be permitted to offer evidence that FirstEnergy and FirstEnergy Solutions' contributions to Generation Now were not bribe payments but were made for any number of legitimate reasons," attorneys wrote.
Borges, Householder want to defend their characters
Borges' and Householder's attorneys want the ability to present their clients in the best light. That includes offering testimony that refutes federal investigators' accusation that Borges bribed GOP operative Tyler Fehrman for information about the ballot initiative to block House Bill 6, which housed the nuclear bailout.
Borges contends that he gave Fehrman $15,000 in exchange for help on political projects unrelated to House Bill 6 to help out a friend in need. Borges' attorney wants to present information to that effect.
"The court should deny the government's blanket request to preclude all positive other act or character evidence," Borges' attorney Karl Schneider wrote.
Householder's attorneys want to present information about why he backed House Bill 6: "The jury is entrusted to decide whether the motive alleged by the government or Householder is the correct one, but for it to do its job fairly Householder must be allowed to mount a defense."
Householder's attorney also wanted to cross-examine Borges about any plea deal that the ex-GOP leader was offered and declined, according to a court filing.
Borges might bring up Trump
Borges has publicly questioned whether his opposition to former President Donald Trump led to his arrest.
Trump helped oust Borges from his role as chairman of the Ohio Republican Party in 2017. In 2019, Borges launched an effort to encourage Republicans to support Democratic candidate Joe Biden over Trump in the 2020 election.
"Whether any of those issues influenced or motivated the FBI agents in their investigation of this case is relevant to their credibility," Borges' attorney Karl Schneider wrote. "The Government's apparent concern that the FBI agents' answers may 'amount to' an appearance of selective prosecution is both insufficient and telling."
Jessie Balmert is a reporter for the USA TODAY Network Ohio Bureau, which serves the Akron Beacon Journal, Cincinnati Enquirer, Columbus Dispatch and 18 other affiliated news organizations across Ohio.
This article originally appeared on Cincinnati Enquirer: Ohio corruption case: What evidence will be allowed at Householder trial?