|Bill Jefferson challenges bribery charges|
by Bruce Alpert, The Times-Picayune
Thursday March 12, 2009, 10:23 PM
WASHINGTON -- Any payments the government says former U.S. Rep. William Jefferson sought for family-owned businesses don't constitute bribery because they cannot be connected to any official congressional acts, his attorneys say in a brief that goes to the heart of the New Orleans Democrat's defense strategy.
The argument is laid out in a brief filed this week opposing a Justice Department request to allow a former New York member of the House of Representatives to testify as an expert witness about constituent services routinely performed by members of Congress.
In effect, the Justice Department suggests that when Jefferson helped businesses get contracts in Africa in return for payments to family-owned businesses, he was performing a constituent service for which he sought bribes.
"The government's brief is a stunning admission of its inability to prove the elements of a bribery case, " Jefferson's attorneys said in their filing. "Apparently, it is so unclear that the defendant violated the bribery statute that the government is seeking to prove instead that he violated some expanded version of the statute, and it has admitted that it might not be able even to do that without an expert."
That argument has numerous problems, his attorneys say, contending that helping businesses get contracts in western Africa, even setting up meetings with elected officials in those nations, does not fit the definition of constituent service.
But the problem is even deeper than that, Jefferson's attorneys say.
"To prove the crime of bribery, the government must still prove the corrupt demand or receipt of something of value in return for a decision or action on any question, matter, cause, suit, proceeding or controversy" -- the legal definition of an official act -- the brief says.
The government is unable to do this, according to Jefferson's attorneys.
If their argument were to prevail with a jury when the trial convenes May 26, it would be significant. Fourteen of the 16 charges against Jefferson relate to bribery-related statutes.
The government in earlier briefs has argued that Jefferson was using his office to advance the interests of businesses that were providing or promising to provide money to his family's businesses. That includes, they say, Jefferson asking a U.S. agency about the status of an application by one of the businesses, attending a meeting with an Export-Import Bank official, using congressional staffers to arrange travel and having U.S. embassies set up meetings to help businesses obtain contracts in Africa.
Jefferson's attorneys said none of the government allegations constitutes bribery.
"Picking up the phone to inquire about an agency's progress is not a decision or action on any question, matter, cause, suit proceeding or controversy, and the government cannot solve that problem simply by positing that Jefferson's 'decided' to pick up the phone, " the Jefferson brief says.
In 1999, the U.S. Supreme Court limited the reach of the bribery statute when it ruled that former Agriculture Secretary Michael Espy did not break the law when he accepted gifts from an agricultural group with business pending before the agency. It said the government could not offer evidence of any official act that Espy took in return for the gifts.
More recently, a federal appellate court ruled that a Washington, D.C., police detective likewise was not guilty of bribery when he took money in exchange for giving out information from a police database because the act didn't involve his official responsibilities.
Congress has been working with the Justice Department to broaden the definition of official acts under the bribery statute. In earlier legal papers, Jefferson's chief attorney, Robert Trout, said that the fact Congress is looking at broadening the definition of official acts is all but a concession from lawmakers that what Jefferson is accused of is not a violation of law.
In his latest brief, Trout says the Justice Department should not be allowed to call as an expert witness former Rep. Matthew McHugh, D-N.Y.
"The government should not be permitted to call an expert witness to opine for the jury that the ambiguous circumstances set forth in the indictment constitute a crime, " Trout wrote.
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Bruce Alpert can be reached at firstname.lastname@example.org or 202.383.7861.