Government: Jefferson Testimony Not Privileged

Posted June 2, 2008 at 6:11pm

The government on Friday filed a brief with a federal appeals court disputing Rep. William Jefferson’s argument that many of the charges in his corruption trial should be dismissed because they interfere with his rights as a legislator.

The 16-count indictment against Jefferson on charges of bribery and wire fraud alleges that the Louisiana Democrat accepted and offered hundreds of thousands of dollars in bribes to promote business ventures in West African nations.

Jefferson’s attorneys filed an appeal with the U.S. Court of Appeals for the Fourth Circuit in February after a district court denied his request to throw out 14 of the counts on the grounds that testimony before a grand jury violated the Constitution’s Speech or Debate Clause, which protects some legislative activity from intervention by other branches of government.

The government’s response was submitted less than a week before of the one-year anniversary of Jefferson’s indictment.

The case, which is being heard in the U.S. District Court for the Eastern District of Virginia, was originally scheduled to begin in January but has been delayed indefinitely pending decisions on several motions and the appeal.

Oral arguments on the appeal are scheduled to be heard in late September. Several motions introduced in the district court case — including requests by Jefferson to move the trial venue and to force the government to use international criminal law treaties to obtain the depositions of alleged co-conspirators living in Nigeria — are scheduled to be considered June 13.

The government’s brief argues that the implications of granting Jefferson’s argument resound far beyond the lawmaker and this particular case.

Prosecutors contend that dismissing the charges based on the argument that Jefferson’s inherent influence as an elected official is protected by the Speech or Debate Clause would effectively grant immunity for any alleged crimes committed while a Member holds office.

“Finding minimal evidence to support his argument, defendant advocates for a threshold for dismissal, that, if adopted by this Court, would make the prosecution of Members for even the most egregious malfeasance all but impossible,” the government argues in the 71-page brief.

The government’s brief underscores the findings of the district court that the activities described in the testimony are not privileged materials because they are not central to Jefferson’s legislative duties or the creation and advancement of legislation.

The core of the indictment, U.S. District Judge T.S. Ellis III said in that Feb. 6 decision, involves “allegedly criminal non-legislative activities,” such as meeting with foreign officials, engaging in official travel and using his Congressional staff to promote business deals and arrange bribes.

“In arriving at this conclusion, the district court’s opinion demonstrates a keen understanding of the myriad precedents holding that constituent services, which are at the heart of this case and central to the government’s theory, may be routinely performed as part of a Member’s job, but are not legislative acts and, therefore, are not protected by the Speech or Debate Clause,” the government argues.

The government also disputes Jefferson’s argument that he should be able to review all evidence and testimony presented to the grand jury for possible violations of the Speech or Debate Clause.

After Jefferson’s attorneys first filed a motion requesting to review all testimony and evidence presented to the grand jury, the government turned over testimony given by Jefferson’s former and current staff members.

In the May 30 brief, the government argues that releasing the testimony by Jefferson’s staff is sufficient to address the defense’s concerns. It also contends that alleged violations “plucked” from the transcripts by Jefferson’s attorneys are not violations of the clause but merely references to the Louisiana Congressman’s position and irrelevant legislation not mentioned in the indictment.

“The grand jury was presented no privileged Speech or Debate Clause materials,” the brief stated. “Instead, as the face of the indictment reflects, the grand jury heard voluminous amounts of non-privileged evidence relating to defendant’s criminal conduct, namely bribes solicited by [Jefferson] in exchange for his performance of official non-legislative acts.”