A University of Montana law professor thinks Greg Gianforte’s likely court appearance Monday morning for assaulting a reporter was probably not the congressman-elect’s main legal worry.
“It’s a misdemeanor, a maximum $500-dollar fine," says Andrew King-Reis, a UM criminal law professor. "It’s probably his first offense which means he’s probably going to get a deferred sentence, a couple of conditions, keep your nose clean everything’s good, it goes away."
According to King-Ries, Gianforte was probably more concerned about a potential civil lawsuit.
“The thing about a civil lawsuit that’s different than a criminal lawsuit is that the plaintiff in a civil lawsuit — the journalist in this case — would be able to get discovery, would be able to ask Mr. Gianforte a series of questions; things about his background and his past that we probably wouldn’t see come up in this misdemeanor case," he says.
Late Wednesday, Gianforte sent a formal apology letter to Guardian reporter Ben Jacobs. It says he plans to donate money to a journalism advocacy organization. In return Jacobs said he won’t sue Gianforte and that he accepts his apology.
Gianforte was charged with misdemeanor assault the night before the polls opened in the special election for Montana’s U.S. House Seat, May 25.
Jacobs accused Gianforte of body slamming him and breaking his glasses after he asked a question about the Republican health care bill.
Jacobs also said he won’t oppose Gianforte entering a no-contest plea to the assault charge.
So, what’s the difference between a ‘no contest’ and a ‘guilty’ plea?
“In the end, there’s no real difference," King-Reis says. "It’s still a conviction. In other words, what no contest means is, ‘I’m not going to contest that the state has enough evidence to find me guilty of what they’ve charged me with.”
There’s also a practical reason why ‘no-contest’ is preferable to a ‘guilty’ plea.
“Because you don’t have to say, ‘I did it,'" he says.
But King-Ries notes the court is not obligated to accept Gianforte’s expected no-contest plea. From the day this story broke, some have said it appears Gianforte is getting special treatment from the Gallatin County sheriff’s office and courts.
For instance, some wonder why he was not arrested. King-Reis says responding officers have no hard and fast rules to follow in those circumstances, and adds they must take several factors into consideration before making an arrest; factors like:
“Is Mr. Gianforte going to present a continuing danger to the public in that situation? Probably not," King-Reis says. "So, you don’t have a situation where you think someone’s going to commit other violent acts, so it’s less important to detain them in that situation. Montana’s what we call a preferred arrest state. So, if the officer has probable cause, it’s preferred that they make an arrest in certain situations, but they don’t have to. It’s in their discretion.
"My sense is the officer would probably be thinking to themselves ‘I want to make sure I’m doing this correctly. This is a high-profile case — or it’s about to become a very high profile case,' as it did — and there are other considerations to think about there. Probably the officer there would then consult with the prosecutor’s office and say, ‘Hey, I’ve got this situation. How do we proceed here?'"
He adds the misdemeanor assault charge filed against Gianforte appears appropriate under the circumstances:
“To get to a felony assault it would have to be an aggravated assault or an assault with a weapon. An aggravated assault would require serious bodily injury. The journalist’s glasses were broken, and there was some pain involved, for sure, but not serious bodily injury which is permanent bodily impairment or a risk of death," he says.
That said, unlike Gianforte, most people accused of misdemeanor assault don’t walk into Gallatin County Justice Court represented by a former Montana U.S. Attorney and a respected local criminal defense attorney.
King-Reis says he’s seen no indication Congressman-elect Gianforte is getting any special treatment.
That goes both ways.
He's betting prosecutors will be sure to treat Gianforte no differently than any other Montanan under similar circumstances:
Andrew King-Ries: At this point it looks to me like that’s exactly what they’re doing.
Edward O'Brien: So, just because Gianforte has the financial wherewithal to get skilled attorneys behind him, that does not necessarily mean he’s getting favored by the system?
AKR: Generally, people who have the means to afford private attorneys will sometimes get better results. But that’s a system failure. I don’t think that’s Mr. Gianforte getting special treatment. Unfortunately, I think that’s systemic that people who don’t have those means often don’t get those results.
