Attorney General John Formella, who previously served as Gov. Chris Sununu’s legal counsel, should be disqualified from a high stakes criminal case brought against a sitting Supreme Court justice, defense attorneys argued Monday. They contend that Sununu will be a key witness in the case against Anna Barbara Hantz Marconi, should it go to trial, and that Formella’s ties to Sununu present a conflict of interest.
Sununu appointed Hantz Marconi to the state Supreme Court in 2017. She’s now accused of attempting to sway him into intervening in an ongoing investigation into her husband, Geno Marconi, the state ports director.
During a hearing Monday, Richard Guerriero, Hantz Marconi’s lawyer, said that the attorney general cannot be impartial and fair, given his past work representing Sununu as his personal attorney and then serving as his attorney general.
“His personal interests are directly tied to this very powerful and important witness,” Guerriero told the court.
Guerriero argued that if the indictments aren’t dismissed, a special prosecutor should take over the case, to avoid a real or perceived conflict of interest.
State prosecutors told Merrimack County Superior Court Judge Martin Honigberg that the case should proceed, arguing that Hantz Marconi’s claims that Formella cannot oversee the state Department of Justice and bring a legal case against her would set an unworkable precedent.
“What the defense is asking for in this case is immunity,” said Joe Fincham, an assistant attorney general for the state. “That if you commit a crime in front of the governor, or any other high ranking client of the Attorney General, you are immune from prosecution in the state of New Hampshire.”
The state also noted in legal filings that Sununu will leave office and return to being a private citizen starting in January, well before Hantz Marconi’s case would go to trial.
Hantz Marconi was in the courtroom Monday, but did not address the court. She declined questions from reporters after the hearing.
She waived her arraignment and entered a "not guilty" plea to the charges against her: two counts of improper influence, a felony, and five additional misdemeanors including criminal solicitation and obstructing government administration.
Honigberg did not make an immediate ruling on her lawyer’s request to either dismiss the indictments or bar the Department of Justice from prosecuting the case.
Accusations and unanswered questions
Hantz Marconi was indicted in October on allegations that she attempted to improperly influence an investigation into her husband when she met privately with Sununu and his personal attorney. The justice allegedly told Sununu during that June meeting that there was no merit to the allegations against her husband, Geno Marconi, and that her forced recusal from a majority of cases was harming the functioning of the state Supreme Court.
A day after the indictments against Hantz Marconi were released, Geno Marconi was indicted by a Rockingham County grand jury for allegedly obtaining and disclosing confidential records involving Neil Levesque, who serves on the Pease Development Authority’s board of directors and is also the head of the Institute of Politics at Saint Anselm College. (The PDA board oversees the Division of Ports and Harbors, where Marconi has worked since 1995.) Marconi allegedly shared those records with a co-defendant, Bradley Cook, who served alongside Marconi on a port advisory committee.
It isn’t clear what records Marconi allegedly obtained and shared or what he planned to do with those documents.
Marconi entered a "not guilty" plea last week, with a trial possible next year. Cook also waived his arraignment last week.
Key witnesses among most powerful in state politics
Lawyers for Hantz Marconi stressed repeatedly during Monday’s hearing that Sununu would be a “key witness” in her trial, as the governor and his legal counsel Rudy Ogden were the only people present during her June meeting with Sununu in the governor’s office.
Before Sununu appointed him to lead the Department of Justice, Formella served as his legal counsel.
It isn’t clear if Sununu himself alerted prosecutors about his meeting with Hantz Marconi, or if that information was shared by Ogden. It also isn’t known if the initial concerns about the meeting were made directly to Formella or someone else in his office.
According to charging documents, Hantz Marconi is also accused of improperly contacting Steve Duprey, the chair of the Pease Development Authority, in April, shortly after her husband was placed on administrative leave with no explanation.
(Duprey is a member of NHPR’s Board of Directors, but has no influence over the station’s coverage.)
New Hampshire Chief Justice Gordon MacDonald could also be forced to testify should the case go to trial. Hantz Marconi has said she mentioned to MacDonald the idea of a meeting with Sununu, and that MacDonald told her he had no concerns about it.
Lawyers for Hantz Marconi filed arguments alleging that Hantz Marconi’s meeting with Sununu was legal under her constitutionally protected free speech rights. Her alleged statements about the investigation hampering her work on the Supreme Court should also be protected under judicial immunity, they argued.
Hantz Marconi was forced to recuse herself from all cases involving the Attorney General’s office beginning earlier this summer, after it became clear her husband was under investigation. In July, she was placed on administrative leave from the bench.
Following the release of indictments in October, Hantz Marconi’s law license was temporarily suspended.
