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Hogan to be called as witness in trial of former top aide

Gov. Larry Hogan speaks Wednesday, April 29, 2020, in a press conference in Annapolis. (The Daily Record / Bryan P. Sears)

Maryland Gov. Larry Hogan will be called as a witness in the federal fraud trial of Roy McGrath, his former chief of staff.

Hogan’s likely appearance before a jury in U.S. District Court in Baltimore is noted in court documents filed Tuesday.

The disclosure is part of a joint filing of proposed questions for prospective jurors. The filing provides a limited look at possible witnesses in McGrath’s trial. The document filed with the court notes the availability of a more complete witness list closer to trial.

Even so, Hogan’s name would stand out because of his high-profile position as well as the rarity of a sitting Maryland governor being called as a witness in a criminal trial.

Michael Ricci, a Hogan spokesman, referred questions about the trial to prosecutors.

“Over the last two years, our office has been actively assisting in these ongoing investigations,” said Ricci. “As the cases moves forward, we are confident that the justice system will uphold the public trust.”

The eight-page joint filing includes the question: “Governor Larry Hogan will be called as a witness by the Government in this case. Does the fact that the Governor of the State of Maryland will be a witness for the Government affect your ability to be fair and impartial?”

A follow-up question asks jurors would they give more or less weight to Hogan’s testimony merely because he is the governor.

Attorneys for McGrath proposed questions about Hogan’s participation in the trial. Prosecutors have objected to jurors being asked about the governor.

A spokeswoman for the U.S. Attorney’s Office declined to elaborate on the reason for the objection.

McGrath faces an eight-count federal indictment. Charges include wire fraud, including securing a $233,648 severance payment equal to one year of salary as the head of Maryland Environmental Service. He also faces fraud and embezzlement charges connected to roughly $170,000 in expenses and failure to take vacation time while vacationing in Florida and on a cruise to Spain, France and Italy.

A final charge involves allegations that he falsified a memo that purports to show Hogan was informed of  McGrath’s severance arrangement and signed off on the deal.

His trial is scheduled to begin Oct. 24 before U.S. District Court Judge Deborah L. Boardman.

Hogan has repeatedly and vehemently denied knowing of or approving of a severance payment negotiated by McGrath with the quasi-government agency before McGrath briefly became the two-term governor’s top aide.

Earlier this week, prosecutors filed a motion in federal court seeking to block McGrath and his attorneys from using a recorded phone call in which Hogan and McGrath were participants.

A spokesman for the governor was not immediately available for comment.

McGrath faces related state charges, including nine counts of violating the Maryland Wiretap Act. Federal prosecutors said the recordings, allegedly made by McGrath, include “high level state government officials including cabinet secretaries, the Governor’s former chief of staff, his former chief legislative officer, his former communications director, various senior advisors and health advisors as well as the governor himself.”

Maryland law requires two-party consent when recording phone calls and other private conversations. Prosecutors acknowledge that federal law allows for one-party consent but note that McGrath is not charged with violating federal laws for the recordings.

Prosecutors want the judge to block the use of eight recorded calls. They said they plan on introducing one of the recordings made on Aug. 17, 2020 — the same day McGrath resigned — because it relates directly to the federal charges. The other calls, they wrote in their motion, have no connection to those charges. They asked the judge to exclude them, saying it would only confuse jurors.

Joseph Murtha, McGrath’s defense attorney, opposed the prosecution’s motion, focusing on the legality of the recordings under federal law rather than Maryland law. McGrath faces nine counts of violating the Maryland Wiretap Act.

“However, the defendant’s trial in the State of Maryland is not scheduled until March 2023,” Murtha wrote. “No Maryland court has found that the defendant acted in violation of the Maryland Wiretap Act, and therefore no Maryland court has found that the recordings were obtained in violation of the Maryland Wiretap Act. This Court need not make any finding as to whether the recordings at issue were obtained in violation of Maryland law, as it does not have any bearing on the Court’s inquiry.”

Daily Record legal affairs reporter Madeleine O’Neill contributed to this report.