|Former Rep. William Jefferson files appeal with U.S. Supreme Court|
by Bruce Alpert, The Times-Picayune
Thursday February 19, 2009, 9:24 AM
MICHAEL DeMOCKER / The Times-Picayune
WASHINGTON - Former U.S. Rep. William Jefferson's attorneys are asking the U.S. Supreme Court to review a lower court decision rejecting arguments that prosecutors improperly presented information about his legislative duties to a grand jury in violation of a constitutional separation of powers clause.
In a request filed late Wednesday and posted on the court's Web site this morning, Jefferson wants 14 of the 16 corruption charges he faces at a May 26 trial dropped.
The defense attorneys said the 4th U.S. Circuit Court of Appeals in Virginia, in rejecting their appeal, not only failed to take note of grand jury testimony about his role in helping pass an African trade bill - a clear violation they said of the Constitution's Speech or Debate clause - but refused to review unreleased grand jury testimony to determine if other violations occurred.
"The Speech or Debate Clause is a unique constitutional provision that creates an absolute privilege for legislative activities within its scope," Jefferson's attorneys said. "It protects legislators not only from conviction based on legislative acts, but also from having to defend themselves as a result of those acts."
The Justice Department declined comment on the appeal.
Jonathan Turley, a law professor at George Washington University, said the Supreme Court rarely accept such cases in advance of trial.
"That is not to say that the claim is not meritorious," Turley said. "However, these appeals run against the judicial grain and are viewed as premature."
The Supreme Court is likely to decide whether to schedule oral arguments in the case before the scheduled May 26 trial date. If it agrees to take up the case, which legal experts consider a long shot, it likely would force the trial to be delayed.
The indictment returned by the northern Virginia Grand jury in June 2007, accuses Jefferson of demanding, and in some cases receiving, payments to family-owned companies to help businesses and their executives secure contracts from Nigeria and other western African nations. The government alleges seven such schemes in the indictment.
Jefferson, a New Orleans Democrat, lost his bid for a 10th term last December.
Jefferson's lawyers argue that their case presents the courts with a serious constitutional question that has drawn conflicting rulings from appellate courts, potentially leading to uncertainty regarding other criminal cases now pending against members of Congress.
Three appellate courts have come to a different interpretation of the Speech or Debate clause than the 4th Circuit - mainly, according to Jefferson's lawyers, that a court "has the power to examine the evidence presented to a grand jury to determine whether the clause has been violated, and "to dismiss the indictment where a violation is found."
The 4th Circuit, in a unanimous ruling by a three-judge panel, later affirmed by the full appellate court, said grand juries should be given wide latitude in determining whether to indict, and upheld the trial judge's ruling that the Speech or Debate clause shouldn't be interpreted too liberally.
"Put simply, the Speech or Debate Clause is not a license to commit crime," trial Judge T.S. Ellis III wrote in his opinion on the clause's applicability to the Jefferson case.
In their brief to the Supreme Court, Jefferson's lawyers said prosecutors can investigate crimes by elected officials without violating the Constitution.
"Vindicating the Speech or Debate Clause in this manner would not immunize members of Congress for anything they do while in office or place them above the law; nor would it impose unwarranted burdens on law enforcement," his lawyers wrote.
It's a tricky legal argument for Jefferson's team because, while they argue that prosecutors used testimony about his legislative activities to secure an indictment, they also plan to argue at trial that the bribery offenses aren't valid because trying to influence foreign government leaders isn't part of his legislative duties such as voting and introducing legislation.
The lawyers also brought up the most infamous allegation in the case: that FBI agents, in searching Jefferson's Washington D.C. home in August 2005, found $90,000 in cash in his freezer. They predicted that prosecutors, in arguing against a Supreme Court review, will cite the freezer discovery as proof the grand jury had substantial evidence not related to the Speech or Debate clause.
"But that widely reported fact has no bearing here," Jefferson's lawyers said. "Mr. Jefferson maintains his innocence and will defend against all of the charges in the indictment at trial."
His lawyers said the "the money in the freezer" is not alleged to be a bribe to Jefferson, but rather a violation of the Foreign Corrupt Practices Act, and therefore isn't one of the 14 charges they are seeking to have dismissed.
The lawyers said the money "was transmitted to Mr. Jefferson by the government's cooperating witness during the course of the FBI's sting operation so that he would pass it to a foreign government official," the then vice president of Nigeria.
"But Mr. Jefferson did not do that," his lawyers said. "Instead, the marked funds were recovered in his home."
The lawyers don't disclose what he planned to do with the money. Jefferson has said he has an "honorable explanation," which he will offer at trial.