February 9, 2012

Plotting The Cutler Files

A court filing contains Scarcelli campaign emails about attacking the independent on a website, but she insists she was unaware of the plan.

By John Richardson jrichardson@pressherald.com
Staff Writer

AUGUSTA — Court documents filed Wednesday say that Rosa Scarcelli, a Democrat who ran for governor in 2010, gave her blessing to the opposition research effort that became The Cutler Files, an anonymous website that published critical information about independent candidate Eliot Cutler.

click image to enlarge

Eliot Cutler, Rosa Scarcelli and Dennis Bailey

Related Documents

Cutler court documents (pdf)

Depositions of Scarcelli, her husband and her chief political adviser, and excerpts from their email conversations, provide a look inside the political maneuvering during the 2010 campaign.

The documents also prove that the website was the work of Scarcelli's political campaign and should have included disclosure statements, according to arguments filed by Cutler's attorney.

"The record establishes beyond dispute that The Cutler Files was not a 'news story, commentary or editorial,' but was a negative campaign advertisement with no other reasonable interpretation than advocating the defeat of Eliot Cutler," the filing says.

The documents cite emails by Scarcelli referring to her desire to go after Cutler's reputation. "I feel we need to dislodge (Cutler) before he develops roots. I think it's highly important to start a blog campaign about him," she wrote in November 2009, for example.

Scarcelli was then running for the Democratic nomination, which ultimately went to Libby Mitchell. Cutler narrowly lost to Paul LePage in the general election in November 2010.

Scarcelli has consistently denied being involved with the creation of The Cutler Files and has said she was disappointed to learn that her husband and chief political adviser were behind the effort. She stuck by those statements Wednesday.

Scarcelli said the court filings take references to routine opposition research and other lighthearted email conversations out of context to support a theory that she was out to get Cutler, even after losing the primary election in June 2010.

"The accusations are completely false," Scarcelli said. "The opposition research (she knew about) is absolutely completely different from The Cutler Files."

In all, hundreds of pages of documents were filed Wednesday in U.S. District Court in Portland. The documents are intended to support a motion by Cutler's attorney to dismiss a lawsuit by Dennis Bailey, Scarcelli's former adviser and the primary author of The Cutler Files.

Bailey is appealing to the court to overturn a $200 fine imposed on him by the Maine Commission on Governmental Ethics and Election Practices. The commission determined that Bailey should have included a campaign disclaimer on The Cutler Files website telling potential voters who paid for the site.

Bailey's attorneys are expected to file their own arguments in court today, saying the website was anonymous speech protected by the First Amendment.

"The ethics commission found that this was not done as part of a campaign, it was done by Mr. Bailey on his own," said Zach Heiden, an attorney with the American Civil Liberties Union of Maine who is representing Bailey in the case.

Efforts to tie Scarcelli to the research or the website are not relevant to the legal issue, Heiden said.

"We disagreed on the way (the commission) interpreted the law," he said. "We think, as a matter of First Amendment law, that news on the Internet should be treated the same way it is in newspapers or on the radio or on television."

Bailey could not be reached Wednesday.

The ethics commission also is expected to file arguments in court today, defending the fine. It collaborated with Cutler's attorney, Melissa Hewey, on a joint statement of facts filed Wednesday.

The documents show that Scarcelli and her team did opposition research on Cutler in 2009 to present to the Democratic Governors Association. Her campaign wanted to make the case that Scarcelli was the best Democratic candidate and that Cutler would be a threat in the general election.

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