The Ring of Truth
Jack Abramoff--the imprisoned Washington ex-lobbyist--must be kicking himself.
On Thursday, October 15, a judge in Washington, D.C. reluctantly declared a mistrial for defendant Kevin Ring, one of Abramoff's most trusted lieutenants.[1] The jury had found itself hopelessly deadlocked on all eight counts, most of them "private honest-services fraud."[2] And Ring accomplished this amazing derring-do without calling a single witness in his own defense.
It may be a sign that the reign of honest-services-fraud terror by federal prosecutors is finally coming to an end.
Honest-services fraud--"a scheme or artifice to deprive another of the intangible right of honest services"--is punishable by up to five years in federal prison, a $250,000 fine, or both. The problem is no one has a clue what this statute means.
Prosecutors have repeatedly suborned perjury and obstructed justice--both felonies--by terrorizing white-collar defendants into pleading guilty in return for a reduced sentence in a cushy prison camp. These plea bargains--all under the guise of judicial economy--guarantee prosecutors a conviction. What prosecutors fear most is going to trial, because they know that these ill-defined charges won't fly with any reasonable jury.
The Kevin Ring case is a stunning example.
What's more, even though they have taken a solemn oath to "seek justice," federal prosecutors have subverted the integrity of the legal system by deliberately exploiting the vague and inscrutable honest-services fraud statute in order to achieve high convictions rates at any cost.
"How can the public be expected to know what [honest-services fraud] means when the judges and prosecutors themselves do not know, or must make it up as they go along?" wondered U.S. Court of Appeals Judge Dennis Jacobs in 2003.
Even U.S. Supreme Court Justice Antonin Scalia, who is no friend of liberals, has declared that:
Without some coherent limiting principle to define what 'the intangible right of honest services' is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate C.E.O.'s who engage in any manner of unappealing or ethically questionable conduct.
If carried to its logical extreme, Scalia added, "It would seemingly cover a salaried employee's phoning in sick to go to a ballgame."
Indeed, the U.S. Supreme Court--which rejects nearly 99% of the 10,000 annual requests to review a lower-court ruling--has recently agreed to accept three cases involving the constitutionality of honest-services fraud.
No doubt, federal prosecutors are holding their collective breath.
Thus far, 17 people have "confessed" their crimes in the Abramoff influence-peddling scandal without going to trial. Ring is only the second person who has refused to be intimidated by federal prosecutors, forcing them to take the case to a jury--which resulted in a deadlock.[3]
This is why Abramoff--languishing in a federal prison camp in Cumberland, Maryland for the past three years--is kicking himself.[4] If only he had gone to trial, instead of being pressured into pleading guilty to charges he knew he was not guilty of. And if only he had been able to hire defense attorney Brendan Sullivan, who managed to keep Col. Oliver North and Sen. Ted Stevens out of prison.[5]
By the way, what were the heinous charges brought against Kevin Ring? He "lavished" elected officials and their staff with free sports tickets and meals--essentially, the very same charges lobbed against Abramoff.[6]
During closing arguments, the jury was told by the defense:
It sounds sinister to talk about meals and tickets, near in time to when folks are being asked to take official actions. It is the way lobbying works; it is the way politics works...This is not a sign of a bribe. This is not the sign of a corrupt relationship.
Indeed, during deliberations, the jury asked the judge if there was a legal limit on the dollar value of meals and sports tickets that a lobbyist could give to public officials. The judge told them that there was not.
If the U.S. Supreme Court rules that the honest-services fraud statute is unconstitutionally vague, all convictions based on this alleged crime should be overturned and all those convicted and imprisoned should be immediately released and justly compensated.
Gary S. Chafetz is the author of The Perfect Villain: John McCain and the Demonization of Lobbyist Jack Abramoff.
NOTES:
[1] On February 3, 2004, when a Washington Post reporter met with and questioned Abramoff at his office--19 days before the first story appeared in print--the three lobbyists closest to Abramoff also participated in the interview: Todd Boulanger, Jon van Horne, and Kevin Ring.
[2] Public honest-services fraud involves actions taken by a public official. Private honest-services fraud involves actions taken by a private citizen.
[3] The other was David Safavian, the former top procurement official in the George W. Bush administration, whose conviction for perjury was overturned following his trial in 2006. Safavian was retried and convicted again. On October 16, 2009, he was sentenced to a year in prison.
[4] Abramoff will have 12 months knocked off his prison sentence, because he will have completed a drug-rehab program to prevent recidivism. Prior to his incarceration, he had become dependent on Ambien, a sleeping pill. Abramoff is slated to be released from prison in June 2010, after which he will spend six months in a half-way house.
[5] At Col. North's urging, Abramoff initially hired Sullivan, but hours later Sullivan was forced to withdraw due to a conflict of interest--another attorney in Sullivan's law firm was representing Abramoff's employer in an unrelated matter.
[6] In a separate case, Abramoff was charged with wire fraud, involving a fraudulent $23 million wire transfer in Florida. I interviewed Adam Kidan, Abramoff's business partner. Kidan told me that Abramoff knew nothing about this bogus wire transfer. In my opinion, Abramoff would have never been found guilty of this charge.
Another charge that received widespread attention was the claim that Abramoff defrauded his tribal clients by failing to disclose his "kickback scheme" involving public-relations expert Michael Scanlon. Abramoff, whom I secretly interviewed for over 100 hours before and after he went to prison, told me that he had simply received a perfectly legal referral fee from Scanlon and that he was not required to disclose this. Indeed, federal prosecutors later had to concede that Abramoff was correct about this.
Prior to Abramoff's sentencing in Washington D.C. in September 2008, prosecutors issued a sentencing memorandum in which they stated in a footnote:
Where Abramoff's interest in the profits of [Scanlon's company] was not disclosed to potential clients, there was no clear legal duty to disclose what Abramoff and Scanlon intended to do with their profits. There are other payments made to Abramoff by Scanlon pursuant to their secret arrangement, but these payments arise only from interactions before Abramoff was hired as the clients' lobbyist. Consequently, those payments were not charged as criminal law violations.
Absent any other criminal violation, what did the prosecutors ultimately do? They charged Abramoff with private honest-services fraud.
Loading comments…
Want to reply to a comment? Hint: Click "Reply" at the bottom of the comment; after being approved your comment will appear directly underneath the comment you replied to
Mistrial means that there will be a second trial...that is all.
See Gary S. Chafetz's Profile
Not all mistrials are created equal. This mistrial was due to a deadlocked jury. If prosecutors learn that the vote was, for example 10 to 2 to acquit Kevin Ring, they will most likely not waste their time and taxpayer money to retry the case.
Why not just call it "bribery"?
See Gary S. Chafetz's Profile
As clarified by the U. S. Court in a 1991 decision, bribery must involve a specific qui pro quo. In other words, for a bribery conviction you would have to have said to your lawmaker: “I’ll pay $1000 if you vote against a bill.”
But it would not be bribery if you were to say, “I’m going to make a $1000 contribution to your campaign war chest. Oh, by the way, I’d like you to vote a certain way on a pending piece of legislation because if you don't it will hurt my business.”
That’s how the law reads. And all lobbyists—the ones who work for Exxon as well as those that who work for the disadvantaged—make campaign contributions. The reason they do so is to gain access to lawmakers so they can plead their client’s case.
That is called “petitioning Congress,” a right protected by the First Amendment to the Constitution.
And the reason it stinks is that the rich almost always have a better chance of being heard than the poor.
You are somewhat right in that the Supreme Court held in its 1991 McCormick opion that a conviction under the Hobbs Act where a defendant demanded a jury trial cannot be sustained on legal and factual grounds which were never submitted to the jury. http://www.law.cornell.edu/supct/html/89-1918.ZO.html
Anyone can read the language of the short McCormick case, however, and see that it does not contain language to the effect that: "In other words, for a bribery conviction you would have to have said to your lawmaker: 'I’ll pay $1000 if you vote against a bill.' "
Anyone can likewise see that the Court did not reason: "But it would not be bribery if you were to say, 'I’m going to make a $1000 contribution to your campaign war chest. Oh, by the way, I’d like you to vote a certain way on a pending piece of legislation because if you don't it will hurt my business.' "
The issue of whether a quid pro quo was intended in exchange for legislative support is a factual one.
It can be resolved, for example, by evaluating "whether the official acted in his official capacity at or near the time of the payment for the benefit of the payor; whether the official had supported legislation before the time of the payment; and whether the official had directly or indirectly solicited the payor individually for the payment."
Of course Jack Abramoff would never give an interview that put him in a positive light, nor would he deny any knowledge of illegal activities on his part.
I see a lot of "he told me during an interview", at the bottom of this article, that seems to have been used to support the authors conclusion of his innocence.
Of course he would never lie.
See Gary S. Chafetz's Profile
Of course Abramoff is going to paint himself in the most positive light. But it's only fair to give him an opportunity to do so, which essentially he'd never done before, because his lawyers would not allow him to give his side of the story. One of the basics of journalism is giving someone the opportunity to respond. I hope you're not finding fault with that.
My job, however, is the weigh the validity of the evidence/charges--once I've heard all sides. I'm no fan of Abramoff's. But that doesn't mean I should allow my politics--decidedly liberal--to color my objectivity in investigating the charges against him. I was able to question Abramoff in great detail. I was also able to obtain many documents never released to the public, documents deliberately suppressed by Sen. John McCain. And what I discovered was that the Abramoff scandal was not as black and white as the public had been led to believe.
If you wish to condemn me for doing that, so be it.
If his attorneys believed it would benefit his case, they most assuredly would have let him testify.
Saying he didn't get to tell his side because his attorneys wouldn't let him testify, is a way of letting him have it both ways.
"My job, however, is the weigh the validity of the evidence/charges--once I've heard all sides."
No it really isn't.
Maybe if you labeled yourself a commentator, rather than a journalist.
Ted Stevens was convicted. He escaped prison by the mercy of our new AG dropping the case. Mercy he has not extended to Don Siegelman, whose only crime was being a successful Democrat in Alabama.
Reign of terror? As if!
Somehow putting Abramoff and North together and trying to find some
sympathy is either wishfull thinking, or serious ba..., whatever... As the
goobers who tried to make Mr. North into a "Hero" during Iran/Contra
would say: "That dog don't hunt here".. Save that stuff for your
Teabaggers(tm)..
lb.
I don't know how to understand the point of the article, when I don't understand the article.
Gorbechev warned this would happen to Obama as he tried to push progressive solutions to the carnal blood-letting of the B ush years ... first the 'journalists' would airbrush history, then the 'legalists' like Gonza les would invert the law, and finally the Reac tionary Right Guard would shell O bama and the American people right out of the White House.
When you read recidivist drivel like "And if only he had been able to hire defense attorney Bren dan Sullivan, who managed to keep Col. Oli ver North and Sen. Ted Ste vens out of prison," when we know from multiple confirmed sources both those goobers were crooks, then you can be fairly sure the United States will disintegrate before the 2012 elections, if we're not bankrupted already by these neo CONS.
I would imagine Cha fetz gets invited to all the best cocktail parties in DC and NYC now, wouldn't you?
That much horse manure, there's bound to be a pony around here somewhere.
If you call in sick to cover taking off work to go to the ballgame, you are a liar. I am not surprised that Scalia doesn't find this conduct by a "salaried employee" reprehensible, because I find Scalia to be unqualified for his post in general, on moral grounds.
If you ply elected officials with gifts, I call that bribery. If it isn't illegal, it should be.
The fact that Chafetz scoffs at this behavior is sickening; it says a great deal about what is wrong with our country and the people who run it.
See Gary S. Chafetz's Profile
I completely agree. Calling in sick at work to go to a ballgame is a lie, but it should not be a federal felony, punishable by five years in prison.
By law and as stated by the U. S. Supreme Court, bribery requires a specific quid pro quo. All lobbyists play the same game--those you like and those you don't like. They pay for meals, they supply sports tickets, and they make campaign contributions--in order to gain access to plead their client's case. And like it or not, that right to petition Congress is guaranteed by the First Amendment.
As for Scalia, I don't like him either. But he is qualified.
"I completely agree. Calling in sick at work to go to a ballgame is a lie, but it should not be a federal felony, punishable by five years in prison."
Falsely calling is sick at work to go to a ballgame either is or is not a federal felony.
It is not.
You imply, however, that it is by saying that "it should not be a federal felony, punishable by five years in prison."
Instead of referring to a specific incident in which anyone has ever been prosecuted for "calling in sick at work to go to a ballgame," you merely imply that it is by suggesting that things should be changed.
I suggest that the straw man that you created out of your imagination does not exist.
I don't have a problem with petitioning Congress. I have a problem with bribery. Our elected leaders and legislators should be completely above suspicion; anything that smacks even remotely of bribery should be illegal. Quid pro quo is often difficult, or impossible, to prove; all the more reason to ban such 'gifts'.
As for campaign contributions, they are a cancer on the body politic, especially when we have a Supreme court that maintains that "money is speech". You make the case yourself when you say that lobbyists spend money to gain access, access that is denied to those of us with lesser means.
As to whether Scalia is "qualified": there are no constitutional qualifications that I know of for SCOTUS, other than the implicit requirement that one has to be a) human, and b) alive. Any discussion of "qualifications" is therefore completely subjective. I think Scalia is, for lack of a better term, a lick-spittle lackey of the ruling class, and unqualified to dispense justice. He is a perfect example of knowledge without wisdom.
Of course, this is just my opinion.
There is a vast difference between a professional lobbyist and a lay person calling their congressman to petition him or her so your implied claim they are the same thing is disingenuous.
Abramoff pleaded guilty to tax evasion and conspiracy charges as well, so to imply that he would have walked if he had gone to trial is a bit disingenuous.
See Gary S. Chafetz's Profile
Well, even the tax fraud charge is problematic. He was owed $1.7 million in an IRS refund for overpaying his taxes. In fact, because the evidence was so tenuous, one of the lead federal prosecutors in the Abramoff investigation argued strenuously with her superiors to have the charge dismissed.
You say that Abramoff's conviction for federal tax evasion is, despite his guilty plea, problematic? You reason that his conviction is somehow open to doubt? And you base your reasoning upon nothing more than a claim that a prosecutor wanted to have the charge of federal tax evason dismissed?
If what you say is true and your reasoning is solid, wouldn't it be worthwhile to share such reasoning with the person with the most skin in the game: Abramoff.
With such information, wouldn't he be interested in using it to get his conviction reversed, and getting it reversed in the court system?
Who are these people who "have repeatedly suborned perjury and obstructed justice--both felonies--by terrorizing white-collar defendants..." It seems to me if a person is going to accuse someone of criminal acts, they better be prepared to prove it. Sounds like libel to me...Also, while I can certainly agree the Scalia is no friend to liberals - or anyone who cares about blind justice - I fail to see how declining to hold white-collar criminals to account should be considered a liberal cause. I'm thinking you must be a personal friend of someone accused of these white-collar crimes because I hear lots of justification and you're all over the map in the excuse department.
See Gary S. Chafetz's Profile
Federal prosecutors terrorize white-collar defendants into pleading guilty by threatening them with a lengthy period of incarceration in a maximum-security prison with violent offenders. These prosecutors tempt defendants further by promising them a much-reduced sentence in a minimum-security prison camp if they "confess." Defendants then commit perjury by pleading guilty under oath to crimes that they do not necessarily believe they are guilty of. Therefore, prosecutors have suborned perjury--persuading someone to commit perjury--which is a felony. (The NY Times reported in a front-page Sunday story in November 2008, that over 25% of convicted murderers and rapists, later cleared by DNA evidence, had pleaded guilty. Why did they plead guilty to crimes they had not committed? Because police and prosecutors had terrorized them into pleading guilty.) Not only is that suborning perjury, but it is also obstruction of justice--both felonies.
I have no personal connection to anyone accused of these crimes. I'm just a reporter who is skeptical of all news stories that seem too good to be true, which is how I stumbled into the Abramoff story and somehow persuaded him into granting me extensive and exclusive interviews before and during his imprisonment. (I didn't know Abramoff; didn't know anyone who knew him; and don't have any personal friends who are Republicans.) Also, I have come to believe--since power corrupts and absolute power corrupts absolutely--that there is a need to keep federal prosecutors on a tight leash.
What I find stunning is the authors' conclusion after one mistrial.Poor St. Jack Abramoff.
"It sounds sinister to talk about meals and tickets, near in time to when folks are being asked to take official actions. It is the way lobbying works; it is the way politics works...This is not a sign of a bribe. This is not the sign of a corrupt relationship."
It IS the sign of a corrupt relationship!
Obermann gets tuna squares and sodie pop. Chafetz gets Roth childs and caviar. Smart 'journalism'
You must be logged in to comment. Log in or connect with
