As recently as June 2012, the DOJ was investigating the role Hilary Tompkins, Richardson’s former general counsel, played in creating an October 2007 settlement agreement between the former Democratic governor and a state employee, according to documents obtained by SFR through a public-records request to Gov. Susana Martinez’ office.
In December 2011, national and local media outlets reported that a federal grand jury was investigating whether Richardson paid the state employee $250,000 in campaign money to prevent her from suing him for sexual harassment. If true, such a payment could have violated federal campaign finance law because it went unreported.
The documents shed fresh light on what appears to have been the most recent federal grand jury investigation involving Richardson.
Peter Schoenburg, Richardson’s private attorney, tells SFR the investigation closed last year. “The grand jury ended its investigation many months ago,” he says. “No charges were filed against anyone.”
But that also means it may be harder for the public to know the details of the settlement agreement, and whether Tompkins helped draft it.
Tompkins is now one of the most important lawyers in President Barack Obama’s administration. She acts as the solicitor, or top attorney, for the US Department of the Interior. The DOI uses its $12 billion annual budget to oversee and manage natural and cultural resources around the country. A Navajo woman from New Mexico, Tompkins is the first Native American to hold the post, which is significant because of the DOI’s frequent dealings with tribes. She worked as Richardson’s general counsel for five years, from 2003-2008. In 2009, the US Senate confirmed her nomination to DOI.
On June 20, 2012, Kenneth Gonzales, the US Attorney for New Mexico, wrote to Gov. Martinez that Tompkins “may have played a role in discussing, reviewing and drafting” a settlement agreement between Richardson and the former state employee in 2007.
“The United States is investigating certain conduct in which former Governor Bill Richardson may have engaged during his tenure as Governor of New Mexico,” Gonzales wrote. He added that part of the investigation involved a settlement agreement, “pursuant to which the former Governor agreed to pay a sum of money in exchange for a former state employee’s agreement not to reveal the existence of the Agreement, nor any facts giving rise to the Agreement.”
The allegations recall the high-profile case involving former Democratic presidential candidate John Edwards. In fact, Gonzales sent the letter less than a month after federal prosecutors in North Carolina failed to convince a jury that Edwards illegally funneled some $1 million in campaign funds to cover up an affair with videographer Rielle Hunter.
In fall 2007, Richardson was ramping up his 2008 presidential bid. He abandoned it in January 2008, after a poor showing in the Democratic primary. But he still had a shot at national office: In late 2008, Obama’s transition team nominated him for commerce secretary. During the vetting process, news surfaced that Richardson was under investigation by a federal grand jury for allegedly trading government contracts for political contributions. In January 2009, Richardson withdrew his name from consideration—even though the grand jury never indicted him.
Although Richardson faced other allegations during his final months as governor, little has emerged since. But the documents obtained by SFR show one investigation was ongoing as recently as last summer.
Gonzales’ letter shows that even with the power of the US Attorney’s Office behind him, he had trouble getting information out of the Richardson camp.
“When the FBI attempted to interview Ms. Tompkins,” Gonzales wrote, “her private counsel repeatedly asserted the attorney-client privilege on behalf of Ms. Tompkins and the former Governor.”
So Gonzales tried a different avenue: Martinez, a Republican governor who was willing to waive certain privileges that allow communications between lawyers and their clients to remain secret.
“The United States would like to interview Ms. Tompkins with respect to her role in drafting and reviewing the Agreement,” Gonzales explained, “as well as any discussions she may have had about it.”
Yet doing so could be tricky: A New Mexico Supreme Court rule makes it difficult for prosecutors to subpoena lawyers for grand jury investigations. This April, the DOJ filed a complaint against that rule.
In his letter, Gonzales cited executive orders issued by Martinez and requested that she “waive any executive, attorney-client and work product privileges as they apply to former Governor Richardson on the subject” of the agreement.
On July 6, 2012, Martinez did just that, replying that she was “fully committed to cooperating with federal law enforcement agencies and to appropriately limiting the use of executive privilege.”
“The executive and attorney-client privileges should not be used to evade law enforcement efforts or investigations,” Martinez added, “when there is probable cause to believe a crime has been committed and when a state employed attorney was involved in a personal legal matter related to her government client.”
But Martinez also made sure to limit that waiver to Richardson’s settlement agreement.
“This limited waiver does not include any communications unrelated to the Agreement and is being granted only because of a specific request by federal law enforcement authorities,” Martinez wrote, “as a part of an ongoing criminal investigation.”
Whether the investigation went anywhere from there isn’t clear. FBI officials directed SFR’s inquiries to Gonzales’ office, where spokeswoman Elizabeth Martinez declined to comment. Gonzales himself is expected to leave office in August for a federal judgeship, Martinez says.
Tompkins, too, is staying quiet. A DOI spokesperson declined SFR’s request to interview her about the investigation or her role in the settlement agreement, writing, “The Department is not in a position to comment on the matter.”
The New York Times reported in December 2011 that a person familiar with—but not connected to—the investigation into Richardson’s settlement agreement said the settlement money was believed to have been wired from a bank in Mexico. In the letter obtained by SFR, Gonzales wrote that the settlement agreement was crafted around October 7, 2007—the first specific date on record. On the morning of Nov. 17, Richardson charted a private jet to fly him to an airport in Acapulco, according to the Albuquerque Journal, and the jet returned to Albuquerque the following evening. Richardson’s presidential campaign told the paper that the governor was on a brief vacation to visit his mother and sister.