Secretive roots of 'special D.A.' probe face high-court test

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A lengthy legal fight stemming from an unusual grand jury investigation of the state Working Families Party is reaching the state's highest court, spawning a new and heated argument over the probe's secretive origins.

The party's operations have been scrutinized before without criminal charges resulting. But this case now plays out against a fresh political backdrop. In New York City, the organization came out a player at the polls last year, having backed Mayor Bill de Blasio, Public Advocate Letitia James, Comptroller Scott Stringer and key City Council leaders -- all of them newly elected Democrats.

Avi Schick of the law firm Dentons, representing the WFP, has been trying to quash subpoenas from a special prosecutor that involve a 2009 council race on Staten Island. Schick wants the court to remove the prosecutor, Roger B. Adler, whose appointment was arranged by the borough's Republican district attorney, Dan Donovan. The case is expected to be taken up next month.

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Donovan's office insists that its application to the court containing the reasons for Adler's assignment be kept sealed. The DA even argues that briefs he submits should be partly redacted when given to the WFP.

"No charges have as of yet been brought, and in fact, may not be brought at all," writes Donovan aide Morrie Kleinbart. He contends the DA is sensitive to reputations -- and doesn't want to have to end up facing the question raised by former U.S. Labor Secretary Ray Donovan after his acquittal long ago: "Where do I go to get my reputation back?"

Schick includes in his own brief another notable quote, from U.S. Supreme Court Justice Felix Frankfurter: "Fairness can rarely be obtained by secret."

Besides, he argues, DA Donovan in 2011 revealed to news media his wish for a grand-jury probe of the Working Families Party, suggesting his concern for the probe's subjects is less than genuine.

Chief Court of Appeals Judge Jonathan Lippman has recused himself. The court's judges usually don't reveal reasons for recusal. But observers note that this case challenges the action of a Lippman subordinate, Deputy Administrative Judge Fern Fisher, who agreed to appoint Adler.

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For years critics charged that the way money flowed through the WFP's cleverly constructed network of affiliated organizations broke campaign laws.

In early 2010, the party settled a civil lawsuit by agreeing to cut ties with a for-profit subsidiary. The settlement cost Councilwoman Debi Rose (D-Staten Island), whose 2009 election was at issue in the suit, $13,000. But later that year a U.S. attorney's probe found no criminality, prompting party defenders to call the current probe a witch hunt.

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