New Orleans Mayor Elect LaToya Cantrell listens to Mayor Mitch Landrieu as they announced the beginning of the transition from the Landrieu administration to the Cantrell administration during a press conference at City hall in New Orleans, La., Tuesday, Nov. 21, 2017.

The face-off between state Attorney General Jeff Landry and New Orleans Mayor-elect LaToya Cantrell over Cantrell’s possible abuse of a city credit card has sparked accusations of political motivations and set off a round of musical chairs at Criminal District Court over which judge may handle the case.

And that’s before Landry has filed any charges over the matter — if he ever does.

It's impossible to know at this stage the totality of what Landry may find in his probe of Cantrell’s spending during her five-year tenure on the City Council, a probe that has led him to request her personal banking records. It's unclear whether he'll get those records — Cantrell is fighting the subpoena — or what might be in them.

But if no new and damaging facts surface, any potential criminal case that results from that investigation would face an uphill battle in court, given the outcome of similar cases, according to a range of prosecutors, defense attorneys and government watchdogs who spoke with The Advocate.

Some of them also criticized Landry’s preliminary digging, which apparently is focused on Cantrell alone and comes even as the state legislative auditor is looking into the credit card spending of all seven members of the City Council.

They said a better tack would be to broaden the probe’s scope or else wait until Legislative Auditor Daryl Purpera’s report is complete.

Landry’s probe appears to have been opened on the basis on opposition research conducted by the campaign of Desiree Charbonnet, Cantrell’s unsuccessful opponent in last month’s runoff.

The most damning finding by the Charbonnet campaign was that Cantrell had reimbursed the city for nearly $9,000 in questionable charges made with her city credit card during her term in office. The Charbonnet campaign also said that additional, unreimbursed spending — largely on meals, small items and trips — was not properly explained.

Cantrell and her representatives have since provided explanations for why they say the trips and larger purchases constituted city business.

Experts say that proving a reimbursed expense amounts to theft or that a suspicious-looking charge is in fact improper or illegal can be a difficult task.

Those difficulties may explain why successful prosecutions of politicians for misuse of credit cards or other city funds for personal gain are rare.

Strongest defense?

Generally, such charges make up the meat of a case only when they are blatant examples of theft, such as the purchase of expensive consumer goods or the swiping of cash meant to go to a public fund.

More often, lavish credit-card use and suspicious purchases are lagniappe in a larger case, used by prosecutors to try to show a pattern of venal behavior but often not even figuring into the criminal indictment.

Perhaps the strongest defense of Cantrell's legal position at the moment, ironically, came from the prosecutor on a case her detractors have cited in their arguments to convict her.

Tony Clayton, the chief felony prosecutor for the 18th Judicial District, which includes Iberville, Pointe Coupee and West Baton Rouge parishes, agreed that there appear to be some similarities between what is known about Cantrell and the facts Clayton used to build a case against disgraced former New Roads Mayor Robert Myer.

Myer was accused of using a city-issued credit card for more than $11,000 in personal expenses and conspiring with another City Hall employee to swipe more than $9,000 on city cards over four years. 

But there were other, much more incriminating facts. Some of the purchases were made in exchange for sexual favors, Clayton said. And there was a cover-up: Myer had some of his employees alter credit card statements.

On top of that, while Myer paid back more than $9,500 of the improper charges, that still left a debt of more than $2,000 outstanding, state investigators said.

Myer ended up resigning and pleading no contest to one count of malfeasance in office, in a deal that allowed him to avoid jail.

But Cantrell’s case seems different in that she apparently paid back the personal charges she accumulated, Clayton said. She also did so of her own volition.

“That ‘permanent intent to deprive’ the city is what made it a theft, or malfeasance in office,” Clayton said. “Here, you do not have that, with the mayor-elect. You do not have it with the other City Council people. So, therefore, she didn’t break the law, in my opinion.”

Seeking clear violations

As might be expected, successful prosecutions often involve clear-cut violations.

Federal charges against former St. Tammany Parish Coroner Peter Galvan, for example, included allegations that he used more than $9,000 in public funds to buy a generator for his personal boat and nearly $2,400 for GPS equipment for his personal use. He did not reimburse any of that money until ordered to do so by the courts.

Galvan pleaded guilty to federal theft charges in 2014 and served two years in prison.

But another north shore case shows that allegations of misusing a credit card, even when they appear to be well-founded, often don’t even appear in the final case.

A report from the state Legislative Auditor’s Office in 2008 found that then-Mandeville Mayor Eddie Price had used a city credit card for $5,000 in personal expenses and $42,000 in meals. But when Price was charged and pleaded guilty to federal corruption and tax evasion charges, his abuse of Mandeville's credit cards never came up.

David Caldwell, the former director of the public corruption unit for the Attorney General’s Office, said the reason was that other crimes — such as campaign finance violations and accepting trips from city contractors — were far easier to prove.

Generally, “you don’t want to mess around with a charge that’s a little weaker and could be seen by the jury as being part of a politically motivated case,” Caldwell said.

Ralph Whalen, who served as Price’s defense attorney, said the credit card charges came up in discussions with prosecutors, but “it was so minor that I think it would have been embarrassing for anyone to charge him with it.”

And when a case rides completely on credit card abuse, it can be difficult to prove that specific charges were for personal benefit.

A prosecution that failed

Orleans Parish District Attorney Leon Cannizzaro’s office discovered that when prosecuting former French Market Corp. Director Kenneth Ferdinand over $10,000 in credit card charges he racked up during his three-year tenure. After a two-day bench trial, Criminal District Court Judge Arthur Hunter ruled that prosecutors had failed to show any of those charges were for Ferdinand’s personal use.

Ferdinand’s defense attorney was City Councilman James Gray, who said he’s worked on multiple cases involving similar allegations, all of which he said should have been dropped before they went to trial. Gray’s own credit card use on the council will now be under the microscope as the Legislative Auditor's Office conducts its review.

“In each of the cases, we went to them before the trial and said, ‘Hey, look, this is what this is about; this is the public purpose,’ " Gray said. “And in each of the cases I thought that the appropriate response should have been, at the very minimum, that there’s no way to tell. Or in some cases it was easy to tell — they had not only a right but an obligation to spend this public money for a public purpose.”

In the Ferdinand case, for example, prosecutors assumed that payments for bike repairs were personal, Gray said, but they were in fact for a bike owned by the organization.

Gray is closely allied with U.S. Rep. Cedric Richmond, who was one of Charbonnet’s leading backers. But the councilman, who lost his bid for re-election last month, said he was “confident” Cantrell did not do anything improper.

“I think it's all politics. I think we wouldn’t be having this discussion if she had not run and won the position of mayor, and I wish we were not having this discussion,” Gray said. “I wish we would accept the results of the election and try to move on and have a good next four years in this city.”

As with Cantrell’s case, Ferdinand made reimbursements for some of the charges he had rung up, though that came after his questionable spending was flagged by the French Market Corp.'s board. Prosecutors argued that the reimbursements were an admission of guilt — a claim that the Charbonnet campaign also used against Cantrell.

But proving reimbursed charges constitute theft is a hard sell for prosecutors. Defense attorneys will question who was victimized. That's a particularly strong argument when the reimbursements were self-initiated, as opposed to coming in the wake of an audit or an investigation.

“If you are buying things you are not supposed to, if you don’t mean to pay it back, it’s stealing. If you don’t mean to pay it back until somebody calls you on it, it’s stealing,” Caldwell said. “If you forget to pay it back and you don’t reconcile the expenses, that’s a mistake, and it's negligence, and it’s not criminal.”

Even if there are apparent personal charges paid for with city funds, a key issue is whether there was intent and whether there are policies that clearly spelled out the rules for the credit card's use, Caldwell said.

“Sometimes it's just a question of whether the policies governing the expense accounts are written tight enough,” he said. “If you take people to some business lunch ... it may be ill-advised, but in some cases it may not be a crime.”

Negligent or criminal?

Clayton, the 18th Judicial District prosecutor, agreed that policies can be key for such a prosecution. While the council’s official policy — which generally bars members from using the cards for personal items — does not explicitly state that members are allowed to reimburse the city if they make a personal swipe, that is apparently what happens in practice, according to public records and interviews with council staffers.

It would be tough for a prosecutor to prove that Cantrell hadn’t always intended to reconcile her expenses, given that practice, Clayton said.

In comparison, Myer, the New Roads mayor, made reimbursements only after he was criticized over his expenses. Even so, Clayton said he still did not prosecute Myer on the charges he paid back.

While Cantrell's decision to pay back questionable expenses on her own volition is a mitigating factor, Metropolitan Crime Commission President Rafael Goyeneche III said the timing of Cantrell’s largest reimbursement — right after she qualified for the fall election — could matter to investigators. Prosecutors could argue that she paid back the money only because she realized her spending might be discovered by a political opponent.

But he also raised questions about Landry’s methods. So far, the AG's subpoenas have all been aimed at Cantrell. Focusing on her alone, rather than the whole council, could make for a weak eventual case. 

“The issue that a prosecutor is going to have to decide is, ‘Was this negligence or was this criminal conduct?’ ” Goyeneche said. “To make that assessment, you need to see the entire picture, not just that of one councilwoman who was ultimately elected mayor.”

The legislative auditor's investigation of possible abuse is looking at the entire council. Landry should wait until that investigation is complete before rushing to prosecute, Goyeneche said.

Caldwell said he, too, would have chosen to wait for the Legislative Auditor’s Office to draw its conclusions before deciding on whether to prosecute. That office has staffers trained to comb through and analyze financial records, he noted, adding that the AG could support the auditor by seeking subpoenas when needed.

The haste with which Landry’s office appears to be pursuing its case — as well as the focus on Cantrell — could reinforce the impression that this is a political prosecution by a partisan Republican against the mayor-elect of a Democratic city. If that impression sticks, it could have a damaging effect on the Attorney General’s Office, Caldwell said.

“The way Jeff Landry has positioned himself (during his political career) is to be very obstinate and attack Democrats. So people are going to use that as a hammer against the AG’s Office,” said Caldwell, whose father, Buddy Caldwell, was elected AG as a Democrat and later switched parties but lost to Landry.

“The faster he goes without any kind of explanation, the more people are going to assume that. And it’s unfortunate because it becomes a sideshow.”

Follow Jessica Williams on Twitter, @jwilliamsNOLA​.