NATE JENKINS / Lincoln Journal Star | Posted: Wednesday, February 8, 2006 6:00 pm
Attorney General Jon Bruning unveiled court documents Thursday that a judge had demanded remain secret — a step that could put Bruning in violation of a gag order but that he said was needed to open a closed process. Related: Judge's ruling wouldn't affect impeachment | See the ruling
“This is not North Korea,” Bruning said. “This is America, and in America, we have a free court system.”
Court documents related to a planned grand jury investigation of University of Nebraska Regent David Hergert, all of which Lancaster County District Judge Steven Burns kept sealed for more than six weeks, shed new light on the case:
* Hergert tried unsuccessfully to quash the grand jury.
* Burns grounded the grand jury process this week because of an earlier immunity agreement Hergert reached with the state after he broke campaign finance laws.
* Burns is considering sanctions against Bruning. “His conduct breeds disrespect for the law and undermines the credibility of every deputy attorney general who makes an appearance in court,” the judge wrote in his order canceling the grand jury.
Bruning made the documents public Thurday when he requested the Supreme Court intervene and open to the public a private hearing scheduled for today. The court later granted his request.
Burns had called the hearing to discuss sanctions against Bruning for not providing the agreements between Hergert and the Accountability and Disclosure Commission, according to documents filed by Bruning.
In a deal with the commission last year, Hergert agreed to pay $33,512 in fines but not face criminal charges for campaign finance violations. That’s the same agreement that led Burns to dismantle the grand jury process Tuesday, a day before a jury was to convene.
Burns doesn’t believe Bruning should be able to pursue charges against Hergert — even without a grand jury investigation, according the to the documents Bruning filed Thursday.
The judge refused to comment Thursday about whether Bruning violated the gag order and whether he could face penalties. Bruning let his filing with the Supreme Court speak for itself but did speak briefly with reporters about his decision.
“I am ashamed any time our system fails its citizens by closing itself off,” he said.
Grand jury proceedings are made secret for a variety of reasons, including protecting the target of an investigation should no criminal charges develop.
Bruning argued in court documents it was wrong for Burns to dress the proceedings in a cloak of secrecy before a grand jury had convened.
And in a motion filed in Lancaster County District Court on Wednesday, he suggested it had to do with Hergert’s unsuccessful effort to quash the grand jury.
“This court has … entered two secrecy orders and called two secret hearings to discuss its secret orders (all this to prevent the public from knowing that Mr. Hergert’s lawyers were attempting to quash the grand jury).”
Bruning requested a grand jury investigation of Hergert after a State Patrol investigation uncovered what Bruning called credible evidence the regent committed a crime. Court documents from Burns made public Thursday show Bruning believed Hergert may be guilty of six crimes, one a felony.
“While the Attorney General had legal authority to simply charge Mr. Hergert with a crime,” Bruning wrote in a motion filed Wednesday, asking Burns to reconsider his decision not to convene a grand jury, “the decision was made to use the grand jury process to increase public confidence in the process.
“The grand jury would have ensured a complete and thorough investigation was made into the legality of David Hergert’s election to the office of Regent.”
Also, a grand jury has the power to subpoena witnesses, which may have provided a deeper investigation than what was conducted, because Hergert did not fully cooperate with the State Patrol.
Bruning isn’t alone in his indignation.
In court documents, Burns questioned the integrity of Bruning and his office, namely because the court was not given the agreements between Hergert and the commission.
“The Attorney General … made an overt decision not to disclose the existence of, or the terms of, the agreements to this court at the time the grand jury was requested,” Burns wrote in his order earlier this week that dissolved the grand jury process.”
Bruning, in another filing, called Burns’ comments “unnecessarily personal, incendiary and unbecoming of a judicial officer.”
The agreement between Hergert and the commission is at the core of Burns’ legal argument that a grand jury should not be formed.
To Burns, it shields Hergert from being prosecuted by Bruning or the commission.
“The law is unequivocal,” he wrote in an order vacating the grand jury, “that any offense which the commission had barred itself from pursuing, so too is the Attorney General barred.”
Hergert is shielded from prosecution by the commission only, Bruning argues, not his office.
“Only one of the agreements even mentions criminal prosecution, and that agreement says merely that NADC will not prosecute criminally,” the document Bruning filed Wednesday says.
The question of whether the agreement precludes only the commission from pursuing criminal charges is not new.
During a meeting in May of the Legislature’s Executive Board, Sens. Chris Beutler of Lincoln and Ernie Chambers of Omaha explored the question with Frank Daley, executive director of the commission.
“The settlement agreements relate strictly to the actions or nonactions of the commission,” Daley said at the time. “It relates to no other agency or authority.”
Reach Nate Jenkins at 473-7223 or njenkins@journalstar.com.