Attorney with PAC that helped Zeldin fighting subpoena for his emails

ALBANY — Thomas K. Dunham, an attorney who was associated with a political action committee that backed the gubernatorial campaign of former U.S. Rep. Lee Zeldin, is asking a judge to quash a subpoena from the state Board of Elections that seeks to obtain records from Dunham's personal Gmail account as part of an ongoing investigation of the group's fundraising. 

An emergency application filed in state Supreme Court on Thursday by Dunham's attorney, James Featherstonhaugh, argues that the subpoena is overly broad and would result in the state board's investigators obtaining all of his client's emails that were sent and received last year from a private email account.

"The subpoena in question is alleged to have been issued in connection with an ongoing investigation into Save Our State NY, Inc., ... an independent expenditure committee operating in New York state in the lead up to the 2022 gubernatorial election," Featherstonhaugh wrote in the filing. "The request to turn over any and all private personal communications which have no bearing or relationship to the present investigation is an impermissible overreach."

The court filing confirms that the Board of Elections is continuing its investigations into both the political action committee and Dunham, who frequently works on legal matters involving campaigns and elections. The filing also discloses that Michael L. Johnson, the board's chief enforcement counsel, had issued subpoenas to three other "agents" of Save Our State NY as part of the ongoing probe. 

Court records show those additional subpoenas were served on former U.S. Rep. John Faso, Kristofer Graham, who was listed as Save Our State's treasurer, and political consultant and fundraiser Jason Weingartner, the former executive director of the state Republican Party. The subpoenas sought all of their records, including communications, related to the political action committee for a three-year period beginning in January 2020. Dunham also received a subpoena for those same records.

The subpoenas, signed by Johnson, warn the recipients — without citing any authority — that they "are not to disclose the existence of this request ... (because it) could impede the investigation being conducted and thereby interfere with enforcement of the law."

The state's investigation also has focused on a second political committee, Safe Together New York, which like Save Our State NY was able to collect and spend unlimited funds to support Zeldin and other GOP gubernatorial candidates.

In October, the Times Union reported that Johnson, who was appointed chief enforcement counsel by former Gov. Andrew M. Cuomo, had been stymied in his attempt that month to receive authorization from the bipartisan board to subpoena records related to the outside groups' ties to Zeldin's campaign.

Johnson's request six months ago, which was first reported by the New York Times, was blocked because the two Republican members of the four-person board, Anthony J. Casale and Peter S. Kosinski, did not attend the board meeting in which it was under consideration. Without their presence, the board did not have a quorum when it went into a closed-door session to deliberate on the subpoena request.

In January, when the matter came before the board a second time, Kosinski and Johnson openly sparred as the commissioner accused the enforcement counsel of leaking information about the subpoena request to the New York Times after he was unable to obtain authorization.

"How would the press know that unless someone here told them? How else would they know that? That’s the question I have," Kosinski said during the meeting. " ... It's obvious from that newspaper report that they knew what was going on here. Someone had to tell them. That implies a leak to me."

Johnson denied providing the newspaper with information about his then-failed effort to obtain a subpoena.

"Nothing was leaked, Peter — at least not from anyone in my unit or me, and as far as I’m concerned," Johnson said. "The fact that we didn’t have a meeting (means that) anyone who understands how things work here, rules and regulations, could immediately surmise, 'Well, if the commissioners don’t show, it affects the investigation, depending on what the chief enforcement counsel wants to do.'"

The emergency application filed Thursday by Featherstonhaugh confirms that Johnson eventually did invoke his authority to issue subpoenas, and began to do so in January.

The Times Union reported last fall, weeks before the general election and as Zeldin was in a tight race with Hochul, that during a conference call with the Republican Governors Association, Zeldin had urged party donors to contribute heavily to Save Our State NY and Safe Together New York.

Zeldin's comments on the call, which his campaign at the time said were not in violation of any rules, came as the congressman has said the activities of those groups are independent from his campaign, as required by state law. 

The conference call had been organized by the Republican Governors Association and led by its chairman, Arizona Gov. Doug Ducey. During the call, Zeldin gave a lengthy statement and answered potential donors' questions.

The outside groups’ fundraising had surged as Zeldin gained ground in his race against Hochul. A single conservative billionaire, Estée Lauder cosmetics fortune heir Ronald Lauder, has given nearly $9 million to the two committees.

Zeldin's campaign was prohibited from coordinating with the outside groups; at one point during the conference call he noted that "there are rules that are in place."

The candidate told the participants the two groups have been "targeting Kathy Hochul on the issues that are most important to New Yorkers, especially crime and the economy." 

"One is called Safe Together. The other one is called Save Our State," Zeldin said. "They're both up on TV. They're doing radio, they're doing digital advertisements and more to help."

Zeldin noted that an individual donor can legally give up to $47,100 directly to his general election campaign, and added: "There's some people on this call who have already done that."

Zeldin later stated that he couldn’t by law collect donations for the outside groups, but urged that donors support them.

"If you are able to give to the Republican Governors Association to assist in a race, or through one of the other entities if you prefer, directly, that's something where you can have a conversation with them," Zeldin said. "I can't because of the rules that are in place. So I'm not going to be able to get to that during this call. But to the maximum extent that you can possibly help us, please do."