|Rep. William Jefferson's attorneys ask court to throw out charges|
by Bruce Alpert, The Times-Picayune
Wednesday September 24, 2008, 6:41 AM
RICHMOND, Va. - Testimony before a federal grand jury about Rep. William Jefferson's role in passing an African trade bill and the influence it gave him with African leaders violated a separation of powers clause in the Constitution and requires that 14 of 16 criminal charges against the congressman be thrown out, his attorney argued Tuesday.
Attorney Robert Trout told a three-judge appeals panel that the Speech or Debate clause of the Constitution is "absolute," and intended to ensure that the legislative branch is "independent" and a "co-equal" branch with the executive.
But some of the judges, through their questioning, seemed skeptical about Trout's remedy - dismissal of all the bribery-related charges in the 16-count indictment.
Judge Paul Niemeyer, an appointee of President George H. W. Bush, suggested that for the court to do as Trout suggested it would have to find "misconduct" by federal prosecutors.
He asked federal prosecutor if the government's indictment depends on the evidence, most of it given the grand jury by a former Jefferson aide, and if the case could move forward without the description of the congressman's influence with African leaders.
Mark Lytle, the prosecutor, said that the indictment includes no mention of the disputed testimony, and that the references noted by Trout represent four lines in hundreds of pages of testimony.
But Trout said that the testimony was a key component of the case presented to the government - that Jefferson was able to use his influence with foreign leaders to seek payments from businesses seeking to do business in western Africa.
"Influence is what this case is all about," Trout said.
The three judges - Niemeyer, Robert King, an appointee of President Bill Clinton and Allyson Duncan, an appointee of President George W. Bush, seemed fascinated by the case, extending the schedule 40-minute oral arguments by 15 minutes.
T.S. Ellis III, the trial judge in Jefferson's case, had rejected arguments by the New Orleans Democrat's attorneys that large segments of the government's case against him should be thrown out because the Virginia grand jury heard descriptions of his congressional duties in violation of the Constitution's Speech or Debate clause. The clause is intended to guard against executive branch interference with the legislative branch.
Ellis said the descriptions heard by the grand jury were not significant enough to taint the grand jury proceedings.
Now, the 4th U.S. Circuit Court of Appeals, one of the nation's most conservative appellate courts, will decide whether Judge Ellis got the case right.
The congressman, who is seeking re-election to a 10th term and running against seven opponents in the Oct. 4 Democratic primary, was not in the courtroom.
Carl Tobias, a law professor at Richmond University who follows the 4th Circuit, said that the court is conservative, but in this case he's not sure what the conservative position will be.
It could be the view that puts a priority on law and order, or the court could decide that the founders in putting separation of powers clauses into the Constitution meant to protect the legislative branch against executive branch interference - even if it interfered with the prosecution of certain cases.
Jefferson is accused of participation in a number of schemes in which, according to the Justice Department, he demanded payments to businesses controlled by family members in return for his help getting contracts in western Africa. Jefferson and his attorneys say that helping people get contracts from foreign governments isn't part of a congressman's official duties and therefore the government is wrong to accuse him of bribery.
Bribery can only be alleged if payments were made in return for official acts such as voting or introducing legislation, they say.
The Justice Department says that Jefferson did perform official acts for the payments to family members. Among them, the Justice Department says, are using official congressional stationery to write letters to foreign officials and asking for help from the State Department and his own staffers for some of his trips to Africa on behalf of business clients.
Tobias said the 4th Circuit generally takes two to three months to decide a case. Timing is important because Jefferson's Dec. 2 trial date is likely to be delayed if the 4th Circuit doesn't rule quickly on Jefferson's appeal.
The 4th circuit ruling, whenever it comes, can be appealed to the U.S. Supreme Court.
If Jefferson's arguments are successful, it would leave him facing only two charges: violation of the Foreign Corrupt Practices Act and obstruction of justice.