Tuesday, December 10, 2013
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.
Eliot Cutler, Rosa Scarcelli and Dennis Bailey
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.
She made the email reference to starting a blog campaign about Cutler that November.
Her husband, Thomas Rhoads, had begun assembling a three-ring binder of information about Cutler. Much of it was gleaned from Internet research, although he also paid for Democratic voting records that showed Cutler and his wife had voted by absentee ballot several times while claiming to live in Maine, the documents say.
When Scarcelli lost the primary, she contacted the Democratic nominee, Mitchell, and offered her the book for $30,000, according to Scarcelli's deposition testimony.
"I told Libby that Thom had pulled together some documents and that – in a binder, a book – and that we needed to pay down some debt," Scarcelli said in her deposition.
Rhoads and Bailey, who by then was working for independent candidate Shawn Moody, started discussing an anonymous website, which became The Cutler Files.
Scarcelli has maintained that she did not know about the plan and was not involved. In July 2010, however, she responded to an email from Bailey about Cutler:
"Perfect. This is why we need to start blogging all the goods. We need to liven this party up," Scarcelli wrote.
In another July 2010 email, written by her husband to Bailey with a copy to Scarcelli, Rhoads wrote of his opposition research on Cutler: "I think it makes most sense to go with it on our own independently on a website."
Scarcelli replies, "And give it to Paul."
An email from Bailey to Rhoads in July 2010 said, "As Rosa predicted, Libby (Mitchell) will be third (in the general election). We can get Moody in the 7 to 8 percent range and Cutler will be toast."
Another email string between Bailey and Scarcelli talked about a prayer circle to help LePage beat Cutler. "That was a joke," she said Wednesday.
The Cutler Files was posted during the last months of the campaign, and Bailey and Rhoads did not admit involvement until well after the election. That led to the ethics commission investigation and the fine against Bailey.
Scarcelli said Wednesday that the court filings are based on comments she made about routine opposition research that was done early in the campaign.
"My campaign pointed out some weaknesses that they thought were important to highlight," she said. "I can absolutely guarantee you that every campaign did opposition research."
She said her email references to blogging referred to posting anonymous comments on newspaper websites or existing blogs, not creating a blog or a website.
"None of (The Cutler Files) had anything to do with my campaign and I have testified under oath to that," she said.
Staff Writer John Richardson can be contacted at 620-7016 or at: