Fitial motion to drop charges placed under advisement

Fitial

After listening to counsels’ arguments, Wiseman said he would issue a written order.

Fitial, who is currently in the Philippines for medical treatment, was not in court. Some of his family members and supporters watched the hearing.

The main argument of attorney Stephen J. Nutting, counsel for Fitial, is that the Legislature had no authority to grant the public auditor the power to prosecute a criminal complaint, especially when that power is afforded to the attorney general under the CNMI Constitution.

Nutting said even if the statute were constitutional, it did not give the public auditor the authority to bring criminal charges against a former governor who is now a private citizen.

“The Constitution is clear—it gives the authority to the attorney general to prosecute and not the Office of the Public Auditor,” the lawyer pointed out at the hearing.

Only if the AG refuses to prosecute will it become necessary for the OPA to take on that role, Nutting said.

In an interview after the hearing, Nutting said his major point is his belief that the public auditor has certain duties that it has to complete before it could bring criminal actions.

He said the public auditor’s principal duty being to advise the AG that it believes a criminal act had been committed either by the governor or the AG.

Nutting said there was no indication that such a report had been made.

“It’s my contention that without a report being made to the attorney general and giving the attorney general the opportunity to exercise discretion it was given under the Constitution to prosecute or not to prosecute, it was not until that decision could be made that the public auditor can bring criminal charges,” Nutting said.

In the government’s opposition to the motion, Office of the Public Auditor legal counsel George L. Hasselback said that Fitial’s interpretation of the statute is incorrect and would result in absurdities.

Not only does this interpretation disregard the basic sentence structure of the statute, but such an interpretation would also result in absurd applications that would waste time, money, and resources of the government, as to render the entire statute useless, Hasselback said.

“Who says we didn’t inform the attorney general?” Hasselback asked at the hearing, adding that OPA has been corresponding with the AG over the years about OPA’s investigation in Fitial’s case.

Hasselback said if OPA usurped the AG’s authority to prosecute, the AG would be in court today, but they were not.

In a later interview, Hasselback said this is a fairly new exercise of authority by the Office of the Public Auditor.

“If you remember, we went through most of this whether or not the public auditor had the constitutional authority to bring charges,” he said, citing the case against former AG Edward T. Buckingham.

Hasselback said it is essentially the same arguments to a large degree and the same authorities apply.

“We hope we get the same results,” he added.

As to the question of why bring the charges now, Hasselback said this is answered by the statute of limitations.

“Sometimes people complain that agencies waited too long to bring charges. But if you bring the statute of limitations, there is really no complaint that you waited too long,” he pointed out.

Nutting said the court should consider the purpose and intent of the statute, that is, to address the concern that a sitting governor could simply remove a prosecuting attorney general and thus avoid any criminal prosecution.

“Since Fitial is not the governor, and cannot remove the attorney general, the Attorney General’s Office is the agency to prosecute this action,” Nutting said.

He said the public auditor may then be advised that it can forward a report to the AG of its “reasonable belief” that the former governor committed these and other criminal acts, and to allow the AG to determine if the matter is worthy of criminal prosecution, and if criminal prosecution is truly “necessary” and in the best interest of the Commonwealth.

OPA’s complaint charges Fitial with 10 various criminal charges. OPA later amended the information to include three more charges.

The charges are related to the unauthorized release of a federal inmate, award of a sole-source American Recovery and Reinvestment Act contract, shielding of former attorney general Edward T. Buckingham from being served with penal summons, and the execution of a power purchase agreement contract related to the Commonwealth Utilities Corp.

Fitial, 68, has pleaded not guilty to all charges.