Safavian Ruling Alarms Watchdogs

Posted June 17, 2008 at 6:21pm

A former government official convicted of lying about his relationship with disgraced lobbyist Jack Abramoff had no obligation to reveal details of that relationship to government ethics officials, an appeals court ruled Tuesday.

The decision raised concerns among ethics advocates that the court is undercutting rules designed to ensure that government officials are not engaged in corrupt activity.

The U.S. Court of Appeals for the D.C. Circuit overturned the conviction of David Safavian, the former chief of staff at the General Services Administration, for lying to GSA ethics officials about his relationship with Abramoff. The appeals court ruled, in essence, that ethics opinions from government agencies are advisory in nature, and while they can be used as a defense by an employee who seeks an ethics opinion, there is no legal obligation to provide full and accurate information to the ethics officials.

Safavian took a golf trip to Scotland with Abramoff, telling ethics officials at GSA that Abramoff had no business before the GSA and that he was paying his own way for the trip. His conviction was based on the fact that he failed to disclose that he had helped Abramoff get information about GSA projects that might have been of benefit to Abramoff’s clients.

The appeals court ruled that, “At GSA, as elsewhere in the federal government, the officer or employee making the inquiry may or may not follow the advice of the ethics committee.” While the government argued that by failing to provide complete information Safavian led the GSA ethics panel to issue an opinion that “permitted” him to take the trip, the court found that “it was not up to the GSA ethics officers to permit or forbid; their function was to offer advice. It is not apparent how this voluntary system, replicated throughout the government, imposes a duty on those seeking ethical advice to disclose — in the government’s words — ‘all relevant information’ upon pain of prosecution.”

The appeals court has sent Safavian’s case back to the federal district court for a new trial, but the Justice Department said it is reviewing the decision and has not decided whether to retry Safavian.

Craig Holman, government affairs lobbyist for Public Citizen, said the ruling creates “a huge gaping loophole in the ethics regime for the executive branch if they are going to say [ethics officials have] no authority to force compliance.” Holman warned that “if the court is going to take away the enforcement authority of all 6,000 ethics officers in the executive branch … there is no one who can enforce the compliance with any of the ethics rules.”

But Rob Walker, an attorney at Wiley Rein and the former chief counsel of the Senate Ethics Committee, said, “I don’t really know that it changes anything.”

Walker said the decision “simply emphasizes the fact that [ethics opinions] are worth something in terms of a shield only if the person who is seeking that opinion and getting that opinion gives all of the necessary and relevant information to the committee.” If the information provided is incorrect, then the advisory opinion from the ethics committee is no defense for any underlying activity, Walker said.

Safavian was convicted in 2006 on four of the five felony counts he’d been indicted on, including making false statements to investigators and obstructing the Justice Department probe of Abramoff. The jury found him not guilty of obstructing a parallel investigation by the Senate Indian Affairs Committee into Abramoff’s business activities.

Senior Justice Department officials hailed the jury’s decision at the time.

“Today a jury found David Safavian, a former federal official, guilty of lying to Congress and GSA investigators about his dealings with lobbyist Jack Abramoff,” said then-Assistant Attorney General Alice Fisher in a statement released by the department after his conviction in June 2006. “The message of this verdict is clear: In answering questions posed by Congress and by federal agencies, public officials have the same obligation as does the public for which they serve — to tell the truth. No one is above the law.”

But Biz Van Gelder, an attorney at Morgan Lewis who had been Safavian’s trial counsel, said that lying to an ethics officer isn’t necessarily a crime.

“The ethics process is to protect someone if they tell the truth, the whole truth and nothing but the truth,” Van Gelder said. “And if they don’t, they get no protection. That’s the whole deal.” This is what makes ethics rules work, Van Gelder said, because “why would anybody in their right mind ask for an ethics opinion when if their circumstances change or if they made a mistake, they can be prosecuted for a criminal offense?”

Van Gelder pointed out that the appeals court noted that ethics procedures do become binding when there is a government form involved — such as a financial disclosure form — which requires the person filling it out to vouch for the information he or she provides.

The appeals court decision does not therefore undermine federal ethics rules, Van Gelder said. It is simply saying “that the Justice Department misused government ethics rules in trying to create a criminal conviction out of what is essentially a disciplinary action.”

During the trial, the jury viewed hundreds of e-mail exchanges between Abramoff and Safavian detailing Abramoff’s attempts in 2002 to gain control of the Old Post Office building in downtown Washington, D.C., which Abramoff wanted to turn into a luxury hotel. Another GSA property that Abramoff was seeking at that time would have been turned into a school.

Safavian was serving as GSA chief of staff, and he advised Abramoff on how to acquire the two GSA properties, though Abramoff never ended up taking over either building.

Safavian then took part in a luxury golf junket to Scotland in August 2002 that was paid for by Abramoff, reimbursing the lobbyist for $3,100, which prosecutors said was less than the value of the trip.

Safavian was the only official convicted by a jury in the Abramoff affair. Other convictions in the case have been achieved through guilty pleas.