It didn’t take long for New Hampshire’s Senate race to turn dirty. In his first TV ad, Democratic Rep. Paul Hodes falsely accuses his likely Republican opponent of erasing e-mails to cover-up her department’s botched investigation of an alleged $20 million Ponzi scheme. But former state Attorney General Kelly Ayotte’s e-mails were preserved in accordance with state law (thousands have been released publicly). There’s no evidence that she engaged in any cover-up, and her agency was not the only one at fault.
There is no question that several state agencies, including the Department of Justice, mishandled an investigation into what could turn out to be the state’s largest Ponzi scheme. A May 12 report by Attorney General Michael Delaney — who was appointed by Democratic Gov. John Lynch to replace Ayotte, a Republican — concluded that the Justice Department failed to communicate, coordinate, cooperate and assist other agencies in an effort to pursue potential leads that could have prevented the spread of the alleged Ponzi scheme. This has become a major issue in the campaign. Hodes has posted three critical Internet ads on the issue and now has released his first TV ad. Ayotte has responded to Hodes’ attack with a TV ad of her own called “False.”
Hodes for Senate Ad: "44 Times"
Paul Hodes: I’m Paul Hodes and I approve this message.
Kelly Ayotte: I had no personal knowledge of this matter.
Announcer: It was the biggest Ponzi scheme in New Hampshire history.
Ayotte: It did not come personally to my desk.
Announcer: And 44 times Kelly Ayotte ducked responsibility and claimed she didn’t know. But her office knew what was happening. It was on her watch. And two days before she resigned, she made sure her emails would be erased.
Ayotte: I can’t fully answer that question.
Hodes’ TV ad, titled “44 Times,” criticizes Ayotte for “ducking responsibility” in the aftermath of an alleged fraud case that Delaney says cost investors "at least $20 million." But the ad goes too far when it insinuates that Ayotte has something to hide. The announcer says: “Two days before she resigned, she made sure her e-mail would be erased.” A similar claim was made in an Internet ad called “Files Not Found.” That ad, which was posted on YouTube May 11, says: “As soon as Kelly Ayotte left office, all of her e-mails were deleted.” Neither statement is true.
Let’s take the easy question first: Were "all of her e-mails" deleted? No.
Delaney released a statement May 10 saying, “recent press accounts reporting that all e-mails to or from former Attorney General Kelly A. Ayotte were deleted are not accurate.” In fact, Delaney said his office received its first right-to-know request for Ayotte’s e-mails Aug. 18, 2009, and it had released "more than 5,000 e-mails" to or from Ayotte. In his statement, Delaney explains the state’s policy as it relates to Ayotte:
Delaney, May 10: Former Attorney General Ayotte’s e-mail account and only those e-mails which had been left in that system’s electronic in-box, out-box or deleted items box, were deleted, after her departure from the office. Substantive e-mails sent to and received by her were preserved in the specific case and matter files they addressed, or in many instances for internal e-mails, in the files of the other members of the Office who had received those e-mails. E-mails, like all other forms of the government records we possess, may be preserved in different formats and generally are filed based on the subject of the record. After an e-mail is processed out of the e-mail system, there is no one place where every e-mail to or from any one member of the Office is stored. Significant e-mails are, however, preserved either on paper or in electronic format, sometimes both.
In an interview, Senior Assistant Attorney General Michael Brown added that all e-mail correspondence is backed up every night — so very few e-mails, only those deemed "transitory," would not be backed up. This procedure was in place before and after Ayotte took office. Hodes Spokesman Mark Bergman said all e-mails released to date were recovered only from current employees’ computers, but Brown confirmed that the released e-mails have come from a combination of sources, including from Ayotte’s backed-up e-mail account.
Not True That Files ‘Can’t Be Found’
Now, what about the claim that Ayotte "made sure her e-mail would be erased" just two days before leaving office? That accusation stems from Ayotte’s policy decision to exempt all archived e-mails from the state’s right-to-know law. Her decision did not result in erasing any e-mails.
The Hodes campaign cites a May 11 Union Leader article to back up its claim. But that article contains no such accusation. In fact, it explains how Ayotte’s archived e-mails were handled just as any departing employee’s: saved to a back-up storage device.
It’s true that Ayotte issued a new policy on archived e-mails on July 15, 2009 — two days before leaving office to campaign for the GOP nomination in September’s primary. But that’s because on May 27, 2009, the New Hampshire Legislature gave its final approval on a bill that updated the state’s right-to-know law. Ayotte was responding to the Legislature, not acting on her own accord.
The Hodes’ campaign perpetuates the misinformation about Ayotte’s e-mails on a website called "The Ayotte Files." One portion of the site allows viewers to click to “Read Ayotte’s emails” only to get an error message: “We’re sorry, but Kelly Ayotte’s emails could not be located.” That’s not true. As we’ve said, the attorney general’s office systematically has been releasing her archived e-mails. (Some of the e-mails can be found on New Hampshire’s News 9 website.)
It’s certainly fair game for Hodes to raise the Ponzi investigation, particularly since Ayotte is running on her record as attorney general. And he has a point — to a certain extent — that her department failed in its duties. However, the Department of Justice didn’t have jurisdiction over consumer protection complaints after changes in New Hampshire law in 2002 and 2004. The attorney general’s report explained:
Attorney General’s Report, May 12: As it relates to the issues discussed in this Report, the Department of Justice (“DOJ”) has jurisdiction under the Consumer Protection Act, RSA 358-A, to investigate and prosecute unfair or deceptive acts or practices in the conduct of any trade or commerce within the State. Since 2002, the Consumer Protection Act has exempted trade or commerce regulated by the Banking Department, Securities Bureau, Insurance Department or the Public Utilities Commission.
Justice did have responsibility to advise and help the Banking Department in the investigation. That’s true. But Hodes goes beyond the facts in a weak attempt to link Ayotte personally to the failed investigation.
– by Michael Morse
New Hampshire Department of Justice. "Report of the Attorney General to the Governor and Executive Council."12 May 2010.
"E-Mail Records at the Attorney General’s Office." Press release. Attorney General Michael A. Delaney. 10 May 2010.
Distaso, John. "Ayotte to AG: Go beyond law on emails." Union Leader. 11 May 2010.
New Hampshire Department of Justice. "Attorney General’s Memorandum on New Hampshire’s Right-to-Know Law, RSA Chapter 91-A." 15 July 2009.
New Hampshire House of Representatives. "HB 206. An Act relative to retention of governmental records under right-to-know law." (final version 4 Mar 2009.)
The Ayotte Files. Hodes for Senate. Accessed 30 Jun 2010.
"404 error: Files not found." The Ayotte Files. Accessed 20 June 2010.
Bergman, Mark. Communications Director, Paul Hodes for Senate. Interview with FactCheck.org. 30 Jun 2010.
Bergman, Mark. Communications Director, Paul Hodes for Senate.E-mail sent to FactCheck.org. 22 Jun 2010.
Brown, Michael. Senior Assistant Attorney General, New Hampshire Attorney General’s Office. Interview with FactCheck.org. 29-30 Jun 2010.
Kochvar, Brooks. Campaign Manager, Kelly Ayotte for Senate. Interview with FactCheck.org. 22 Jun 2010.
Kochvar, Brooks. Campaign Manager, Kelly Ayotte for Senate. E-mail sent to FactCheck.org. 25 Jun 2010.
Head, Richard. Senior Assistant Attorney General, Attorney General’s Office. Interview with FactCheck.org. 24 Jun 2010.