Hergert Testifies

The impeachment trial of University of Nebraska Regent David Hergert will resume Monday after a recess was called abruptly Thursday so a defense witness could come to Lincoln to testify.

Chris Ferdico, one of Hergert's lawyers, asked for the recess. He would not say who the witness is.

Ferdico promised Supreme Court Chief Justice John Hendry that the defense would finish its case Monday.

Ferdico appeared flustered at times Thursday as several objections were sustained over his questioning of witnesses.

The prosecution rested earlier Thursday after calling Hergert to the stand.

Hergert, an agri-businessman from Mitchell, is on trial for breaking campaign finance laws to win the 2004 election. He also is charged with violating his oath of office.

Among other things, Hergert is accused of waiting until after the primary election to file a document outlining his spending that would have given his opponent, incumbent Regent Don Blank, matching state funds.

"Are you responsible for this filing?" asked David Domina, the lawyer hired by the Legislature to prosecute Hergert.

"Yes," Hergert responded.

"Did you cause this document to be filed?" Domina said.

"Yes," Hergert replied.

Domina then methodically went through each of the 10 articles of impeachment against Hergert that were approved by the Legislature.

"Mr. Hergert, you are guilty on impeachment articles one through ten, are you not?" Domina said.

Hergert responded only by saying "No."

Defense lawyers earlier showed pictures of his messy office Thursday, apparently to show that he lost documents that should have been filed with state officials.

Hergert's office manager, Charlotte Herrell, testified that Hergert's office was messy while defense lawyer Sean Brennan showed photographs depicting such.

But Domina would have none of it, asking Herrell about all the paperwork involved with Hergert's many businesses.

"There would be many deadlines of which you would have to keep track of, wouldn't there?" Domina said. "And all of those things are kept track of ... in the course of business, aren't they?"

Herrell answered "yes" to both questions.

State Patrol Capt. Mark Funkhouser testified Wednesday that Hergert made inconsistent statements in an interview with him and later in a deposition regarding campaign finances.

Funkhouser said Hergert changed his story several times regarding who -- either Hergert, his treasurer or another staff member -- was in charge of reporting the campaign's finances and keeping track of deadlines for doing so.

Blank testified earlier that Hergert's late reporting of what he had spent on his campaign prevented Blank from getting matching state funds to combat attack ads that Hergert ran the last few days before the election.

Domina detailed a time line during which he alleged that Hergert purposely designed his campaign to prevent Blank from accessing public money.

Under the law, candidates for state offices have voluntary spending caps. For regents races, the cap is $25,000 for the primary and $50,000 overall.

Candidates who agree to abide by the limits qualify for public funds if their opponents exceed the cap.

Candidates who do not abide by the caps must estimate what they will spend and inform the accountability commission when they reach 40 percent of that total in order to trigger the release of matching funds.

Hergert did not agree to the cap and spent $65,000 in the primary, thus qualifying Blank for $40,000 in public funds.

Hergert then estimated that he would spend $40,000 for the general election.

Hergert exceeded the cap but did not notify the commission by the deadline, thus depriving Blank of $15,000 in matching funds in the closing days of the campaign.

Hergert spent much of his money on advertising that attacked Blank.

Blank, who won the primary by 18 percentage points, lost the general election by 11 percentage points.

After the election, Hergert reported spending nearly $90,000 on the campaign -- more than twice his estimate.

Under the law, candidates must report expenditures when they contract for the services, not when the services are rendered.

Hergert failed to report some $50,000 for advertising, strategy research and other services until after he paid for them -- the day after one of the reporting deadlines, Domina said.

Hergert's lawyers have argued that the articles of impeachment adopted by the Legislature should be dismissed because the case revolves around actions during the campaign -- before he took office.

But Domina has countered that Hergert would not have been elected if he had followed campaign finance law and therefore the offenses are inexorably tied to his holding office.

One key to the case is the period from Jan. 4 through Jan. 11, 2005.

A State Patrol report released earlier said Hergert might have broken the law by filing a false campaign financial statement with the Accountability and Disclosure Commission.

According to the report, Hergert signed the report Jan. 4. He was sworn in Jan. 6. He turned in the report on Jan. 11.

Hergert reached a settlement with the accountability commission last year in which he acknowledged accepting an illegal campaign loan and failing to report a late contribution and file two affidavits on time. He agreed to pay more than $33,000 in fines but not face any criminal charges.

One of the articles of impeachment accuses Hergert of violating his oath of office by swearing that he had "not improperly influenced in any way the vote of any elector."

Hergert was immediately suspended from his post as regent when the Legislature voted 25-22 last month to impeach him. Five of seven Supreme Court judges would have to find Hergert guilty to remove him from office.

The last Nebraska official to be impeached was Attorney General Paul Douglas in 1984 over his conduct in office and his personal dealings with a former officer of the failed Commonwealth Savings Co. of Lincoln. He was acquitted by the state Supreme Court but resigned after his law license was suspended.


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