Householder attorneys object to allowing First Energy deferred prosecution agreement at trial

Attorneys for former Ohio House Speaker Larry Householder have objected to allowing First Energy’s deferred prosecution agreement from being introduced as evidence in his upcoming felony racketeering trial.

In what the federal prosecutors have called the biggest bribery scandal in state history, Householder and four others were arrested in the summer of 2020. Facing racketeering, money laundering, and other charges, Householder has been accused of accepting more than $60 million from FirstEnergy in donations to nonprofits he secretly controlled to ensure the passage of House Bill 6.

Ohio House Bill 6 awarded FirstEnergy $1.3 billion worth of ratepayer funded bailouts for nuclear plants owned at the time by a company subsidiary and ratepayer-funded protections against drops in energy revenues. The alleged scheme also included helping block a ballot initiative for voters to overturn the bailout.

Since the indictments, Householder and ex-Ohio Republican Party Chairman Matt Borges have pleaded not guilty. Householder has been removed as speaker and expelled from the House. Two of his associates have pleaded guilty and a third has died by suicide. The nonprofit Generation Now was also indicted and has pleaded guilty.

Householder and Borges await trial, currently scheduled for January.

FirstEnergy entered into a deferred prosecution agreement with prosecutors in the summer of 2021, admitting using the Generation Now nonprofit to “conceal payments for the benefit of public officials and in return for official action.”

It also admitted to giving a $4.3 million bribe to the then-chairman of Ohio’s utility regulator, Sam Randazzo. Randazzo has denied wrongdoing and has not been charged with a crime. He resigned from the Public Utilities Commission of Ohio (PUCO) in November 2020. Ohio Gov. Mike DeWine, who was warned about Randazzo’s ties to the energy industry, has said he does not regret picking Randazzo as Ohio’s top utility regulator.

In a motion filed last week, attorneys for Householder and Borges objected to allowing that First Energy agreement with prosecutors, or testimony surrounding it, to be used during their criminal trials.

“FirstEnergy’s ability to buy its way out of criminal prosecution (by paying $230 million to the federal government and the State of Ohio) does not make it more likely that the defendants here engaged in criminal conduct,” the attorneys wrote. “And while FirstEnergy admitted to engaging in honest services wire fraud by bribing Householder, that is not a relevant fact at trial either. After all, an alleged coconspirator’s admission of guilt is generally inadmissible.”

They argued that a plea or cooperation agreement is only admissible if the cooperating witness testifies at trial.

“FirstEnergy, of course, cannot and will not testify at trial. It’s a corporate entity that cannot appear at trial to be examined or cross-examined,” they wrote.

Further, they argued it would be “unfairly prejudicial” against the defendants to allow the deferred prosecution agreement to be introduced.

“If the Court allows the government to introduce FirstEnergy’s DPA, which contains a detailed 30-page statement of facts, the jury may be inclined to base its verdict on FirstEnergy’s admissions — not on Householder’s actions. Thus, the DPA would lure the jury into determining guilt on grounds separate from proper evidence specific to the offenses charged.”

The motion to exclude was filed on Nov. 9. As of Sunday, government prosecutors had not yet filed a response.